# Petition for Writ of Certiorari — Burch v. Reading Co. (No. 886)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1956

## Text

g Supreme Court of the United States

October Term, 1956.

No. 886

LUCILLE H. BURCH,
Petitioner,

v.

READING COMPANY,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIROUIT.

B. Natuanret, Ricersr,
Szeymour I. Torx,
Barsara Ann Dorry,
Ricuter, Losp & Levy,
Counsel for Petitioner.

121 South Broad Sti et,
Philadelphia 7, Pa.

Taternational, 236 Chestnut St., Phila. 6, Pa.

INDEX.

Page
emennenss DRAB <a vooesc ve evedhvecwacg tes ne emesseds ss 1
JURISDICTION .. 2... e cece cee eee eee eee teen eee ee es 2
QUESTIONS PRESENTED ...... 2... 02020 eee cree cere e eee eees 2
es Deeeee GWU ow. ccc ces ccc cccccticsnccnvececes 3
STATEMENT OF THE CASE ..... 2.0.22 2c eee eee ee ence eeees 4
REASONS FOR GRANTING THE WRIT .......-.- 5-0-0 0 eee eee 6

Point I. In an F. E. L. A. Acion Evidence Susceptible of
the Inference That an Employee Had Negligently Been
Directed or Permitted to Do Work Beyond Her
Capacity Must Be Submitted to the Jury as Well as
the Theory Underlying It, and the Fact That Such
Testimony May Present Conflicting Inferences Also
Commands Submission to the Jury ...........-.++. 9
Point I]. Under the F. E, L. A. the Employer’s Absolute
Duty to Use Reasonable Care to Furnish a Reasonably
Safe Place to Work Includes the Duty of Antecedent
Inspection of That Place .............++02e+eeee- 14
Point III. Where There Is Evidence From Which a Jury
Can Infer the Cause of the Accident in Suit, Instruc-
tions Permitting a Fiading That Injuries Resulted
From a Mere Accident Are Erroneous ...........- 17

Point IV. A Jury Charge in an F. E. L. A. Case Which
Places Upon the Plaintiff the Burden of “Convincing”
the Jury of Negligence and Exonerates Defendant of
Liability in the Absence of That “Conviction” or “If
There Is Just a Doubt” in the Jury’s Mind Imposes
Upon Plaintiff a Prejudicial and Patently Erroneous

INDEX (Continued).

Point VA Jury Charge in an F. E. L. A. Case Which
Instructs That “. . . [the Jury] Should No More
Be Swayed by Sympathy for the Plaintiff Than for
the Widows and Orphans Who May Be Receiving
Dividends or Interest From [Defendant Railroad] and
Who May Need That Income for Themselves and for
Their Families” Is Highly Prejudicial and in and of
Itself Commands the Grant of a New ‘Trial if a Verdict
for Defendant Is Returned ............cccseeeeees

NE I Ab Sods hice adbccpeebsnnnscecepe%'ss.a
Judgment of the United States Court of Appeals for the

ee ee)

Page

TABLE OF CASES CITED.

Page

Beattie v. Elgin, Joliet & Eastern Railway Co., 217 F. 2d 863
eS TEES TEU TOUTE FET OT EET pebasccas 8, 17
Blair v. B. & O. R. R. Co., 323 U. S. 600, 65 S. Ct. 545 (1945) 6, 13
Boatright v. U. S., 105 F. 2d 737 (C. A. 8, 1939) .......... 8, 26
Botta v. Brunner, 42 N. J. Super. 95 (1956) .............. 24

Brock v. Gulf Mobile & Ohio Railroad Company, 270 S. W. 2d
es Uy UE KG Tk Ga Wh RETo Ss COAG choeescbaadacle 8, 17

Carpenter v. B. & O. R. Co., 109 F. 2d 375 (C. A. 6, 1940) .. 7,19
Cereste v. New York, New Haven & Hartford R. Co., 231

F, 2d 50 (C. A. 2, 1956), cert. denied 351 U. S. 95, 76

We PE TEMES SRA Ci ecVd eC end ca wa bobo kkk ood ecks 7,17
Chesapeake & Ohio Ry. Company v. Thomas, 198 F. 2d 783

(C. A. 4, 1952) cert. denied 344 U. S. 921, 73 S. Ct. 387

RE Sh bps dod cu nccat uae Nbek Cebaaceees cawakee cin 7,17
Chicago G. W. R. Co. v. Casura, 234 F. 2d 441 (C. A. 8

NE GN ANG AN Scnawidg CASARUA Camerceees raced cokes 8, 17
Chicago G. W. R. Co. v. Smith, 228 F. 2d 180 (C. A. 8, 1955) 8, 17
Comiskey v. P. R. R., 228 F. 2d 687 (C. A. 2, 1956) ........ 7,13
Cook v. U. S., 18 F. 2d 50 (C. A. 8, 1927) ................ 8, 26
Deen v. Gulf, Colorado and Santa Fe Railway Company, 275

S. W. 2d 529, cert. granted October 8, 1956 ............ 7,13
Futrelle v. Atlantic Coast Line R. R. Co., No. 782, decided

I MA A Wiis wih a Ha Sas WAAR ws awadiicnnc's cfs ke 6, 13
Hill Grocery Co. v. Wilson, 89 So. 2d 687 (1956) .......... 8, 24
Johnson v. Erie Railroad Co., 236 F. 2d 352 (C. A. 2, 1956) .. 7,23
Johnson et al. v. Macias, 193 F. 2d 475 (C. A. 5, ot eye 7,18
Kansas City, M. & O. Ry. Co. v. Estes, 228 S. W. 1087 (Tex.

EE CaN RCCKWG AR Gand bab abd was oc kb Nk ROR OITLA re hekak 19
Knapp v. Kinsey, 232 F. 2d 458 (C. A. 6, 1956), cert. denied

S52 U. S. G02, 77 S. Cr. 181 (1956) coo. ccc cc ccc ccccs 8, 26

Knight v. Allegheny County, 377 Pa. 502, 105 A. 2d 141 (1954) 8, 27
Larson v. Jo Ann Cab Corp., 209 F. 2d 929 (C. A. 2, 1954) ..7, 22, 23
Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740 (1946) .... 6,13
Lillie v. Thompson, 332 U. S. 459, 68 S. Ct. 140 (1947) .... 6,13

TABLE OF CASES CITED (Continued).

Page
Maher v. St. Louis & S. F. Ry. Co., 234 S. W. 1034 (St. Louis
Ct. of App., Mo., 1921) ....--.2-eee reece eee eeeeeeeee 19
McGuigan v. Southern Pacific Company, 247 P. 2d 415 (D. C.
of App. Ist Dist., Cal., 1952) ....-.+--+e+eeereeeeees 13
Myers v. Reading Company, 331 U. S. 477, 67 S. Ct. 1334
(147) .nccccscccccccesccccnccccceccucserscssaneres 6, 14
Narcisco v. Mauch Chunk swp., 369 Pa. 549, 87 A. 2d 233
(1952) 2.2 ccccecececceccnceceteceresenersceesenenes 8, 27
Nelson v. Lee, 32 So. 2d 22 (Ala., 1947) ...--.-++-eeeeeeee 8, 24

Nuttall v. Reading Company, 235 F. 2d 546 (C. A. 3, 1956) .. 7,13
Pennsylvania R. Co. v. Ribkee, 174 N. E. 427 (Indiana, 1930) 19

Quercia v. U. S., 289 U. S. 466, 53 S. Ct. 698 (1933) .......- 6, 26
Robak v. P. R. R., 178 F. 2d 485 (C. A. 3, 1949) .....-.--- 7,13
Robinson v. Pennsylvania R. Co., 214 F. 2d 798 (C. A. 3,

1954). cccvevccnccccccncccccncccescscesseaesesers 7,26
Rogers v. Missouri Pacific Railroad Co., 352 U. S. 500, 77 S. Ct.

rVX 2 6.7) ee 6, 14
Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 S. Ct. 635

(IDIA) 2... ccrcececenncccccecsenccseccesceseceenees 20
Se-Ling Hosiery, Inc. v. Margulies, 364 Pa. 45, 73 A. 2d 387

GC. |) ee 8, 24
Shaw v. Atlantic Coast Line R. R. Co., No. 743, decided April

1, 1957 ...cccccccccccccccncccnccccccscccescocescess 6, 13

Sperber v. Connecticut Mut. Life Ins. Co., 140 F. 2d 2 (C. A.
8, 1944), cert. denied 321 U. S. 798, 64 S. Ct. 939 (1944) 8, 26
Stewart v. B. & O. R. R. Company, 137 F. 2d 527 (C. A. 2,

ES ROO ae OTST Tree 7,13
Stone v. N. Y. C. and St. L. R. R., 344 U. S. 407, 73 S. Ct. 358
Se nn eked a gun aha Sees henSS ANAS nasndee aA 6,13
Stoneking v. United States, 232 F. 2d 385 (C. A. 8, 1956),
cert. denied 352 U. S. 835, 77 S. '&. 54 (1956) .......... 8, 26
Tennant v. Peoria & P. U. Ry. Co., 321 U. S. 29, 64 S. Ct. 409
PROGR sisi Sccks ave cisies <huan ns vkGOogezaai <oees 6, 14

Terminal R. Ass’n. of St. Louis v. Fitzjohn, 165 F. 2d 473
(C. A. 8, 1948) . 02. e eee e eee e eee ee eee eee ete renee 8, 17

TABLE OF CASES CITED (Continued).

Page
Texas & Pacific Railway Company v. Thompson, 232 F. 2d 313
(C. A. 5, 1956), cert. granted on October 22, 1956, No. 321 7,13
Virginian Railway Co. v. Armentrout, 166 F. 2d 400 (C. A. 4,
1Q4B) oc cece cccccccccccecececcnccccececescsseseees 7,27
Waddell v. Chicago & E. I. R. Co., 142 F. 2d 309 (C. A. 7,
1944), cert. denied 323 U. S. 732, 65 S. Ct. 69 (1944) .. 8,17
Webb v. Illinois Central R. Co., 352 U. S. —, 77 S. Ct. 451
(1957) 2... sec ee cece cece ee ceneceneenecenceeneeees 6, 14, 15
Wetterer v. The Atchison, Topeka & Santa Fe Ry. Co., 277 Il.
App. 275 (1934), cert. den. 295 U. S. 754, 55 S. Ct. 835
GOONS fo ca civscowasneanesssiuancrsventesesucuwares 18
Wilkerson v. McCarthy, 336 U. S. 53, 69 S. Ct. 413 (1949) .. 6,20
Williams v. Atlantic Coast Line R. Co., 190 F. 2d 744 (C. A.
S IDGL) ccavcnccvccccccccsccvecsesessunecesesecs 7, 13, 17

TABLE OF STATUTES CITED.

Page
Act of June 25, 1948, c. 625, 62 Stat. 928, 28 U. S. C. Sec.
1254(1) 2... cecccecccccecnenceenececeseseceseeeecees 2
Federal Employers’ Liability Act, 35 Stat. 65, as amended, 36
Stat. 291, 53 Stat. 1404, 45 U. S. C. § 51 et seq. ......-.-- 2, 3,9

IN THE

Supreme Court of the United States.

October Term, 1956.
No.
LUCILLE H. BURCH,
Petitioner,
v.
READING COMPANY,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT.

To the Honorable Chief Justice, and the Associate Justices,
of the Supreme Court of the United States:

Lucille H. Burch, by her attorneys, respectfully peti-
tions that a Writ of Certiorari issue to review the judg-
ment cf the United States Court of Appeals for the Third
Cireuit entered on January 8, 1957.

OPINIONS BELOW.

The opinion of the Court of Appeals is to be found at
9240 F. 2d 574 (C. A. 3, 1956). The opinion of the District
Court, with which the majority of the Court of Appeals was
“in full accord” is to be found at 140 F. Supp. 136 (D. C.
E. D. Pa., 1956). This is the final judgment of the United
States Court of Appeals for the Third Circuit, where judg-
ment was entered for the respondent-defendant affirming
the judgment of the United States District Court for the
Eastern District of Pennsylvania, where judgment was en-
tered for respondent-defendant on the verdict. Judge
Kalodner dissented in the Court of Appeals.

2 Jurisdiction—Questions Presented

JURISDICTION.

The judgment of the United States Court of Appeals
for the Third Circuit was entered on January 8, 1957.
The jurisdiction of this Court is invoked under ec. 646, Act of
June 25, 1948, 62 Stat. 928, 28 U. S. C. Sec. 1254 (1).

QUESTIONS PRESENTED.

I. In an action under the Federal Employers’ Liability
Act' is it not error for the Court of Appeals to affirm the
action of a trial judge in taking from the jury’s considera-
tion competent evidence from which the jury could find re-
spondent negligent in directing that petitioner do work be-
yond her capacity solely on the ground that such evidence
presented conflicting inferences?

II. Is not the Court of Appeals in error in affirming
the trial judge’s charge, the substance of which was that an
employer under the F. E. L. A. has no antecedent duty of
inspecting premises where it knows or should know that
one of its employees is required to perform her duties?

III. Is it not error for the Court of Appeals to affirm
a jury instruction that as a matter of law if the petitioner’s
injury resulted from an accidental slip on a few pebbles,
there would be no liability when those very pebbles pre-
sented evidence from which a jury could have found an
unsafe place to work?

IV. Is it not error for the Court of Appeals to affirm
the trial judge’s submission to the jury of the question of
whether the accident in suit occurred by reason of ‘‘sheer
and unavoidable accident’’ where the submission of that
issue was unrelated to a record containing admitted facts

1. 35 Stat. 65, as amended, 36 Stat. 291, 53 Stat. 1404, 45
U. S. C. § 51 et. seg.

The Statute Involved 3

that indicated negligence and nothing to suggest an act of

God?

V. Is not the Court of Appeals in error in affirming
a jury charge regarding plaintiff’s burden of proof as to
negligence in an F. E. L. A. action which variously in-
structed the jury that the plaintiff’s burden of proof was
one of the ‘‘big points’’ in the case; that a verdict for de-
fendant must be returned unless the jury had a ‘‘convic-
tion’’ as to negligence; that it is plaintiff’s burden ‘‘to con-

vince [the jury] that there was . . . negligence’’ and that
‘If there is just a doubt in your mind, you must bring in a
verdict for the defendant . . .’’?

VI. Is not the Court of Appeals in error in affirming a
jury instruction that the jury ‘‘ . . . should no more be
swayed by sympathy for the plaintiff than for the widows
and orphans who may be receiving dividends or interest
from [respondent railroad] and who may need that income
for themselves and for their families’’?

THE STATUTE INVOLVED.

The Federal Employers’ Liability Act, 45 U.S. C. A.,
35 Stat. 65, as amended, 36 Stat. 291, 53 Stat. 1404, § 51
et seq. the pertinent portion of which reads as follows:

‘‘Every common carrier by railroad while engaging
in commerce between any of the several States . . . ,
shall be liable in damages to any person suffering in-
juries while he is employed by such carrier in such
commerce, . . . for such injury . . . resulting in
whole or in part from the negligence of any of the
officers, agents or employees of such carrier, or by rea-
son of any defect or insufficiency, due to its negligence,
in its ears, engines, appliances, machinery, track, road-
bed, works, boats, wharves, or other equipment.’’

Statement of the Case

STATEMENT OF THE CASE.

This is a suit brought under the above statute for in-
juries sustained by petitioner on November 27, 1950, while
in the employ of respondent.

Petitioner had been employed by respondent in a track
gang for six years prior to the date of the accident (44a,
46a). On the day in question, her foreman, Mr. DiLuzio,
had sent her gang to repair Scott’s Lane grade crossing
in Philadephia (15a, 219a). Respondent’s track bisects
Scott’s Lane. The road came up a hill with a fifteen degree
grade immediately beyond the crossing to the south. This
is a very steep grade (128a). The surface of Scott’s Lane
was badly worn and full of pebbles all the way from the
crossing down to the bottom of the hill (25a, 136a, 137a).
It was pitted with holes and many pebbles which had pulled
loose because the asphalt surface or binding material which
was supposed to hold the pebbles in place had worn away
(25a, 78a, 124a, 127a, 136a, 137a). Ii was difficult to get a
decent footing when walking on this hill and it was very
slippery due to the loose pebbles (127a, 128a). This whole
section of the road, including the point at which petitioner
was injured, was to be completely repaved by the City of
Philadelphia (133a, 134a).

On the day in question, petitioner had been directed
by her foreman to carry dirt in a three-foot shovel from
a pile lying east of the roadway and south of the crossing
and she was to dump it into a hole in the crossing (15a,
16a, 27a). While walking diagonally down across Scott’s
Lane to the dirt pile to get another shovelful, she fell

nd suffered the injuries complained of. As she fell her
feet rolled under her. She felt pebbles under her shoes
(55a). The place in question was surrounded with pebbles
aud those pebbles caused her to fall (63a-67a). Her fore-
man admitted that he found the skid mark of her shoe
right after the accident had happened and saw twenty or
thirty pebbles around the immediate area (221a, 222a). The

Statement of the Case 5

day was cold and the streets were dry and free of ice and
snow (15a, 226a). There was thus no condition other than
the loose pebbles which could have contributed to the acci-
dent in suit.

R. W. Morrison, respondent’s track supervisor, ad-
mitted that he had issued an order to the track foreman
to keep female employees out of sight so that they would
not be visible to respondent’s Board of Directors who would
be going past on trains (146a, 148a). Morrison admitted
that he had directed that they keep the track cleaned up,
in good shape and free of debris. Another of Morrison’s
orders was to the effect that women were to be made to
work as hard as men and render the same services as
men (161a-162a). This was respondent’s policy. Other
evidence established that any women who complained that
the work was too hard were to be laid off (157a, 158a, 162a).
All of Morrison’s testimony and underlying exhibits were
stricken by the trial court and the jury was instructed to
disregard it (291a, 321a, 324a).

The aforementioned DiLuzio admitted that he had an
order to make the women work as hard as the men but
that he tried to circumvent the order because he knew that
women were not able to do this kind of work, and that he
tried to act ‘‘human’’ and gave them lighter jobs when he
could (224a, 227a-228a). Notwithstanding this, on the day
in question DiLuzio assigned petitioner the job of carrying
soil in a shovel up and down the hill in question (228a,
229a).

As a result of the accident in suit, the petitioner
suffered a severely fractured ankle, atrophy of the bone,
arthritis of the joint with narrowing of the articular spaces
where the various bones of the ankle are made up and a
thickening of the outer surface. The site itself represents
in its entirety a completely abnormal joint. The condi-
tion is permanent (86a, 87a). There was also considerable
soft tissue damage, traumatic arthritis of the left ankle
and a foot drop as a result of nerve damage (95a).

Reasons for Granting the Writ

The case was submittel to the jury after a charge by
the trial judge which was fraught with error as indicated
in the ‘‘Argument”’ infra. Appropriate exceptions were
taken by the petitioner to various portions of the charge
and petitioner in addition moved for the withdrawal of a

juror because of the error and unfairness of it (346a-353a,
356a-357a). The jury returned a verdict for the defendant.

Petitioner thereafter filed a motion for a new trial
(371a-375a) which was subsequently denied by the trial
court in an opinion reported at 140 F. Supp. 136 (376a-
412a). Petitioner appealed from the judgment of the Dis-
trict Court and the judgment was affirmed by the United
States Court of Appeals for the Third Circuit on January
S, 1957, by a divided court. Circuit Judge Maris was joined
in the affirmance by District Judge Wortendyke. Circuit
Judge Kalodner dissented. This petition for certiorari
follows.

REASONS FOR GRANTING THE WRIT.

For the purpose of clarity, a statement of reasons for
granting the writ is here set forth. These are expanded in
the argument following this resumé.

1. This decision is in conflict with the decisions of this
Court in Quercia v. United States, 289 U. S. 466, 53 S. Ct.
698 (1933); Blair v. B. € O. R. R. Co., 323 U. S. 600, 65
S. Ct. 545 (1945) ; Lavender v. Kurn, 327 U. 8. 645, 66 S. Ct.
740 (1946); Tennant v. Peoria é P. U. Ry. Co., 321 U. 8.
29, 64 S. Ct. 409 (1944); Myers v. Reading Company, 331
j. S. 477, 67 S. Ct. 1334 (1947); Lillie v. Thompson, 332
S. 459, 68 S. Ct. 140 (1947); Wilkerson v. McCarthy
t al., 336 U. S. 53, 69 S. Ct. 413 (1949) ; Stone v. N. Y. C.
& St. L. RR. 344 U. 8. 407, 73 St. Ct. 358 (1953) ; Rogers
v. Missouri Pacific Railroad Co., 352 U. 8. 500, 77 S. Ct.
443 (1957) ; Webb v. Illinois Central Railroad Co., 352 U.S.
—, 77 S. Ct. 451 (1957) ; Shaw v. Atlantic Coas! Line R. R.
Co. .. No. 743 and Futrelle v. Atlantic Coast Line R. R. Co.,
No. 782, both decided April 1, 1957.

Reasons for Granting the Writ 7

2. One of the questions presented by this case is now
before this Court in Tezas ¢ Pacific Railway Company v.
Thompson, 232 F. 2d 313 (C. A. 5, 1956), cert. granted
on October 22, 1956, No. 321, and Deen v. Gulf, Colorado
and Santa Fe Railway Company, 275 S. W. 2d 529, cert.
granted October 8, 1956, No. 199 both set for argument the
week of April 1, 1957.

3. This decision is in conflict with the decisions of the
United States Court of Appeals for the Second Circuit in
Stewart v. B. d O. R. R. Company, 137 F. 2d 527 (C. A. 2,
1943) ; Comiskey v. P. R. R., 228 F. 2d 687 (C. A. 2, 1956) ;
Cereste v. New York, New Haven & Hartford R., Co., 231
F. 2d 50 (C. A. 2, 1956), cert. denied 351 U. S. 95, 76 S. Ct.
848 (1956); Larson v. Jo Ann Cab Corp., 209 F. 2d 929
(C. A. 2, 1954); Johnson v. Erie Railroad Co., 236 F. 2d
352 (C. A. 2, 1956).

4. This decision is in conflict with the decisions of the
same Court of Appeals in Nuttall v. Reading Company, 235
F. 2d 546 (C. A. 3, 1956); Robak v. P. R. R., 178 F. 2d 485
(C. A. 3, 1949) ; Robinson v. Pennsylvania R. Co., 214 F. 2d
798 (C. A. 3, 1954).

5. This decision is in conflict with the decisions of the
United States Court of Appeals for the Fourth Circuit in
Chesapeake & Ohio Ry. Company v. Thomas, 198 F. 2d 783
(C. A. 4, 1952) cert. denied 344 U. S. 921, 73 S. Ct. 387
(1953) ; Virginian Rwy. Co. v. Armentrout, 166 F. 2d 400
(C. A. 4, 1948).

6. This decision is in conflict with the decisions of the
United States Court of Appeals for the Fifth Cireuit in
Williams v. Atlantic Coast Line R. Co., 190 F. 2d 744
(C. A. 5, 1951); Johnson et al. v. Macias, 193 F. 2d 475
(C. A. 5, 1952).

7. This decision is in conflict with the decisions of the
United States Court of Appeals for the Sixth Circuit in
Carpenter v. B. € O. R. Co., 109 F. 2d 375 (C. A. 6, 1940) ;

8 Reasons for Granting the Writ

Knapp v. Kinsey, 232 F. 2d 458 (C. A. 6, 1956), cert. de-
nied 352 U. S. 892, 77 S. Ct. 131 (1956).

8. This decision is in conflict with the decisions of the
United States Court of Appeals for the Seventh Circuit
in Waddell v. Chicago & E. I. R. Co., 142 F. 2d 309 (C. A.
7, 1944) cert. denied 323 U. S. 732, 65 S. Ct. 69 (1944);
Beattie v. Elgin, Joliet € Eastern Railway Co., 217 F. 2d
863 (C. A. 7, 1954).

9. This decision is in conflict with the decisions of the
United States Court of Appeals for the Eighth Circuit in
Terminal R. Ass’n. of St. Louis v. Fitzjohn, 165 F. 2d 473
(C. A. 8, 1948); Chicago G. W. R. Co. v. Smith, 228 F. 2d
180 (C. A. 8, 1955); Chicago G. W. R. Co. v. Casura, 234
F. 2d 441 (C. A. 8, 1956) ; Sperber v. Connecticut Mut. Life
Ins. Co., 140 F. 2d 2 (C. A. 8, 1944), cert. denied 321 U. S.
798, 64 S. Ct. 939 (1944) ; Cook v. United States, 18 F. 2d
50 (C. A. 8, 1927); Boatright v. United States, 105 F. 2d
737 (C. A. 8, 1939) ; Stoneking v. United States, 232 F. 2d
385 (C. A. 8, 1956), cert. denied 352 U. S. 835, 77 S. Ct. 54
(1956).

10. This decision is in conflict with the decisions of the
State Courts of last resort in Brock v. Gulf Mobile & Ohio
P-‘lroad Company, 270 S. W. 2d 827 (Mo., 1954) ; Nelson
v. Lee, 32 So. 2d 22 (Ala., 1947) ; Hill Grocery Co. v. Wilson,
89 So. 2d 687 (Ala., 1956); Se-Ling Hosiery, Inc. v. Mar-
gulies, 364 Pa. 45, 73 A. 2d 387 (1950) ; Narcisco v. Mauch
Chunk Township, 369 Pa. 549, 87 A. 2d 233 (1952) ; Knight
v. Allegheny County, 377 Pa. 502, 105 A. 2d, 141 (1954).

11. This decision, unless corrected, will inevitably and
rapidly generate a flood of additional litigation and appeals
on aspects of the Federal Employers’ Liability Act which
are common to most such cases and equally common to a
vast number of cases in general civil litigation.

Reasons for Granting the Writ 9

Point I.

In an F. E. L. A. Action Evidence Susceptible of the In-
ference That an Employee Had Negligentiy Been Di-
rected or Permitted to Do Work Beyond Her Capacity
Must Be Submitted to the Jury as Well as the Theory
Underlying It, and the Fact That Such Testimony May
Present Conflicting Inferences Also Commands Sub-
mission to the Jury.

This Petition unavoidably raises a number of critical
issues of law, the resolution of which will have extremely
widespread ramifications into the administration of the
Federal Employers’ Liability Act, 35 Stat. 65, as amended,
36 Stat. 291, 53 Stat. 1404, 45 U. S. C. § 51 et seq. and vital
areas of general civil litigation.

In the case at bar, the majority of the Court of Appeals
below did not deal with all of them in its opinion but that
Court did however find itself ‘‘in full accord’’* with the
holding of the trial judge (at page 2a). It is therefore
clear that the source of the errors which must be corrected
by a grant of this Petition and a reversal of the judgment
below can fairly be said to be in the Court of Appeals for
the Third Circuit.

This was a simple F. E. L. A. case. As a result of the
errors below which are the product of extraordinary indif-
ference to the integrity and force of prevailing rules of
law, it has become a grotesque cause.

Petitioner’s case was tried on the double theory that:
(1) respondent had negligently failed to furnish her with
a safe place to work and/or (2) had negligently directed
or permitted her to do work beyond her capacity. Noth-
ing more than that was involved. We shall shortly discuss
the manner in which the trial court erroneously emasculated
the ‘‘safe place to work’’ issue. As to the other issue, that

2. All subsequent references to the opinion of the Court of
Appeals are to the opinion as paginated in the “Appendix”, infra.

10 Reasons for Granting the Writ

court simply tore it bodily out of the case. The rationale
on which it did so finds no justification in the record and,
most remarkably, the very language with which it seeks to
justify that excision propounds a rule of law which is in
absolute conflict with a large and until now uniform body
of rulings on the point. In holding itself in ‘‘full accord’’
with the trial judge the Third Circuit has isolated and
set itself at war with this Court, and other Courts of Ap-
peals. The courts below stand alone in the views they have
taken of the issues here.

At the trial petitioner proved in support of this sec-
ond theory of liability that each woman was instructed
that she must do the same hard work as men; that com-
plaints had been made by female employees that the work
was too hard; that respondent was on notice that this work
was too hard for women and had taken the position that
since there were such complaints, the female employees
would be held responsible (155a, 156a, 157a, 158a, 161a, 162a,
417a-419a). In Exhibit 10 (419a), specifically addressed
to petitioner, respondent stated that another female laborer
had made a complaint about the work being too arduous
and that since petitioner had not taken exception thereto,
she was considered by the respondent as likewise making
the same complaint.

There was thus before the jury evidence ir the nature
of an admission by respondent that this work was beyond
petitioner’s capacity. The author of the exhibit, Morrison,
was respondent’s track supervisor under whom petitioner
worked. On his direct examination he testified (158a) :

““Q, Now, having had these notices brought to your
attention, was there or was there not and had there
or had there not been substantial discussion between
the railroad company, through you, and these women
laborers in regard to the duties that were being im-
posed upon them as laborers?

A. Not upon the duties being imposed upon them.
Upon the amount of work they were turning out.

Reasons for Granting the Writ 11

Q. And whether they could do that kind of work?

A. There was a discussion about that.

Q. Whether they could do that kind of work; is
that right?

A. Yes, sir.’’

On cross-examination he testified (161a) :

‘«*Q. Were they expected to do the same kind of
work when they were hired that men laborers were
expected to do?’

A. That is my understanding, that they were.

By Mr. Brown:

Q. During the years from 1944 to 1950 was there
ever any instruction given by the management of the
company that women track laborers were not to do the
same kind of work as male track laborers?

A. No, sir.

Q. Did they continue during that time from 1944
to 1950 to do the same work as male laborers, with the
approval of the management?

A. Yes, sir, the management approved the arrange-
ment.”’

2 s *

‘<Q. What, if you know, was the policy of the man-
agement as it came down to you with respect to
whether track laborers should be doing heavy work as
opposed to picking up papers?

‘‘A. It is the policy of the management to get as
much heavy work done as we can, but they recognize,
in fact, that there is a certain amount of light duties
that must be taken care of also, but primarily it is to
do the heavy work.’’

The court struck out all of Morrison’s testimony and
underlying exhibits and so charged the jury (321a, 324a).

In its opinion the trial court denied that it ruled as a
matter of law that petitioner could not recover on this

12 Reasons for Granting the Writ

theory, and rested its denial on the assertion that ‘‘The
court did not use any such language in the charge . . .”’
(383a). The court also claimed that we had neither re-
quested to charge on the theory nor specifically pointed
out to the court its failure so to charge (383a-384a).

This was not so. We raised it as early as the pre-
trial conference (7a). It was suggested to the court during
trial (242a) and the court recognized our position (243a).
After striking it from the case, the court granted us an
exception (291a). The record is therefore protected.

This is the heart of the trial court’s rationalization of
its ruling (386a-387a) :

‘‘Since plaintiff was unsuccessful in showing any
admission by the company, or by Mr. Morrison per-
sonally, or any other evidence that plaintiff was doing
any work in excess of her physical ability or that plain-
tiff had ever made a claim that she had been asked to
do work which was too difficult for her, and since con-
sideration of this testimony and these memoranda had
emphasized conflicting inferences that might be drawn
from the language of four exhibits (P-9, P-10, P-12
and P-13), [footnote] offered by plaintiff, the court
granted defendant’s motion to strike the testimony of
Mr. Morrison just before the closing speeches [foot-
note] and advised the jury to disregard the testimony
of Mr. Morrison at the beginning of the charge [foot-
note]. . . .’? (Emphasis supplied.)

On this unambiguous statement the court took from
petitioner her right to trial by jury on the issue and in
doing so flatly refused to adhere to clear law on the sub-
ject. That is error enough. Even more remarkable is that
the Court of Appeals, having such error brought directly
to its attention, refused to treat it at all in its opinion ex-
cept to find itself ‘‘in full accord’’ with the trial judge.

The effect of the decisions below is to withhold from
the jury’s consideration a theory of liability under the

Reasons for Granting the Writ 13
F. E. L. A. well bottomed in evidence and authenticated
by clear, authoritative decisional law.

This Court directly acknowledged the validity of the
theory in Stone v. N. Y. C. and St. L. R. R., 344 U.S. 407,
73 S. Ct. 358 (1953); Blair v. B. € O. R. R. Co., 323 U. S.
600, 65 S. Ct. 545 (1945), and can fairly be said to have done
so in Lillie v. Thompson, 332 U.S. 459, 68 S. Ct. 140 (1947).
The question is squarely before this Court now in Texas
and Pacific Railway Company v. Thomson, 232 F. 2d 313
(C. A. 5, 1956), cert. granted October 22, 1956, No. 321,
and Deen v. Gulf, Colorado and Santa Fe Railway Com-
pany, 275 S. W. 2d 529, cert. granted October 8, 1956,
No. 199, both set for argument in the week beginning
April 1, 1957.

The decisions below are also in conflict with the law
in the Second Circuit: Stewart v. B. d O. R. R. Co., 137
F. 2d 527 (C. A. 2, 1943); Comiskey v. P. R. R., 228 F. 2d
687 (C. A. 2, 1956); with the law previously announced by
the Court of Appeals below: Nuttall v. Reading Company,
235 F’. 2d 546 (C. A. 3, 1956); Robak v. P. R. R., 178 F. 2d
485 (C. A. 3, 1949); and with the law in the Fifth Circuit:
Williams v. Atlantic Coast Line R. Co., 190 F. 2d 744
(C. A. 5, 1951). y

See also McGuigan v. Southern Pacific Company, 247
P. 2d 415 (D. C. of App. 1st Dist., Cal., 1952).

The error of the courts below in refusing to acknowl-
edge the operation of this theory of liability in the case was
of a piece with their excision of the evidence in question.

Under F. E. L. A. decisional law there was an evidentiary
basis in this record for a jury’s finding of negligence on
the theory claimed. Lavender v. Kurn, 327 U. 8S. 645, 66
S. Ct. 740 (1946). The two theories of liability in question
were closely interwoven, and it was clear that respondent’s
negligence could have been considered on one thecry or
the other, or both. In those circumstances the emp.oyer’s
negligence may be determined by viewing its conduct as
awhole. Blair v. B. d O. R. R. Co., supra. These ases,

14 Reasons for Granting the Writ
we respectfully submit, completely substantiate our view,
but if there were any lingering doubts they have been dis-
pelled by the recent holdings in this Court in Rogers v.
Missouri Pacific Railroad Co., 352 U. 8. 500, 77 S. Ct. 443
(1957) ; Webb v. Illinois Central Railroad Co., 352 U.S. —,
77 S. Ot. 451 (1957) ; Shaw v. Atlantic Coast Line R. R. Co.,
No. 743 and Futrelle v. Atlantic Coast Line R. R. Co., No.
782, both decided April 1, 1957.

As we had earlier indicated, the very language of the
trial court used to justify the excision is in total conflict
with the great body of law on the point. Whereas it found,
and the Court of Appeals was in full accord with the find-
ing, that ‘conflicting inferences”’ arose from the testimony
and memoranda in question and therefore struck the testi-
mony from the case, that is exactly what should not have
been done. In this posture, the matter had to be for the
jury. Tennant v. Peoria & P. U. Ry. Co., 321 U. S. 29, 64
S. Ct. 409 (1944); Myers v. Reading Company, 331 U. S.
477, 67 S. Ct. 1334 (1947).

Point II.

Under the F. E. L. A. the Employer’s Absolute Duty to Use
Reasonable Care to Furnish a Reasonably Safe Place
to Work Includes the Duty of Antecedent Inspection of
That Place.

The Trial Court charged (330a) :

‘‘ Even if you believe plaintiff’s position that there
were so many pebbles that an unsafe condition existed,
you must consider, among other things, whether the de-
fendant’s foreman, Mr. DiLuzio, who was the defend-
ant’s chief representative on the scene, should have
had notice of this condition, in view of the fact that
only an hour, approximately, elapsed between the time
work started at this location and the time of the acci-
dent and the fact that plaintiff herself admitted that

Reasons for Granting the Writ 15

all the other workmen, except ihe man loosening the
dirt in the pile of dirt for her, were on the other side
of the railroad track.

‘You must decide whether this condition existed
long enough so that the defendant, under all the cir-
cumstances, could be said to have failed to have used
reasonable care in not removing the pebbles by sweep-
ing or otherwise.’’

The effect of this instruction was to leave the jury
with the understanding that respondent could lawfully
order or permit its crew to begin working immediately
upon arrival at the place in question regardless of its con-
dition, and that the employer would thereafter have a rea-
sonable time to inspect it to determine whether it was rea-
sonably safe. If this were the law, the doctrine of safe
place to work would be words stripped of substance. It is
not the law.

In Webb v. IWinois Central R. Co., 352 U. S. —, 77
S. Ct. 451 (1957) decided in this Court on February 25,
1957, petitioner slipped and fell over a clinker which was
imbedded in the roadbed of the railroad. The holding
there necessarily assumes that liability flowed from re-
spondent railroad’s breach of its duty to make an anteced-
ent inspection of the place where its employee was injured.
The Court there said:

‘‘As the jury might find that the clinker was in the
ballast used in the repair work, so also the jury might
find, from the fact that it was in the roadbed for three
weeks, that inspection was not properly made. There
was evidence from which it could have been found that
the clinker was not discovered either by the foreman
in semiweekly inspections of the location, made in part
to discover and remove hazards to workmen, or by a
track inspector and a track supervisor making less
frequent inspections. It was for the jury to weigh

16 Reasons for Granting the Writ

the evidence and to decide whether or not the inspec-
tions satisfied respondent’s duty to provide the peti-
tioner with a safe place to work.”’

The ‘‘inspection’’ referred to necessarily means an
inspection antecedent to the employee’s working in the place
in question.

The charge on the point in question (330a), of course,
means that railroads may furnish- the! is provide at the
ontset—uasafe places to work to their employees, and they
thereafter have some unspecified period of time within
which they may make an inspection to determine and cor-
rect the unsafe condition. This would simply make a
mockery of the safe place to work doctrine.

Since the employer’s duty is to furnish a safe place to
work, directing or permitting an employee to enter an
unsafe place to work such as here is palpably the breach of
that duty. It is negligence. What in effect has been done
by the courts below is to destroy the absolute quality of the
duty and instead make of it a spurious duty coming into
play at some indefinite time after the employee has arrived
at the scene. There is thus created a hiatus in which in-
jury may result from the employer’s negligence—failing
to furnish a safe place to work—and yet the employer will
be insulated from liability on the claim that it did not have
a reasonable time after furnishing the unsafe place to
discover its condition.

Not to correct the error below would generate a rash
of additional litigation in all such cases, for defendants
would always claim that even though admittedly they fur-
nished an unsafe place to work, they did not have a reason-
able time after the employee had been placed in those cir-
cumstances in which to discover the unsafe quality of the
area. It is an impossible contention because it posits a
breach of a duty which is by definition negligence and yet
claims that breach is not necessarily negligence—a bold con-
tradiction in terms. This is the embarrassing logic of the

Reasons for Granting the Writ 17

error below. If the doctrine is to have any meaning at all,
it must subsume the duty of the employer to make an an-
tecedent inspection.

What is urgently needed now and what only this Court
can give with the full force of its authority is a clear re-
statement laying down the duty of antecedent inspection.
Only thus will such potential litigation be smothered.

Cases in other Courts of Appeals demonstrate the law
to be other than that suggested by the erroneous rulings
below. These erroneous decisions below are thus in conflict
with the law in the Second Circuit: Cereste v. New York,
New Haven & Hartford R. Co., 231 F. 2d 50 (C. A. 2, 1956),
cert. denied 351 U. 8. 95, 76 S. Ct. 848 (1956) ; with the law
in the Fourth Circuit: Chesapeake & Ohio Ry. Co. v.
Thomas, 198 F. 2d 783 (C. A. 4, 1952), cert. denied 344 77. S.
921, 73 S. Ct. 387 (1953); Williams v. Atlantic Coast Line
R. Co., 190 F. 2d 744 (C. A. 5, 1951); with the law in the
Seventh Circuit: Waddell v. Chicago & E. I. R. Co., 142 F.
2d 309 (C. A. 7, 1944), cert. denied 323 U. S. 732, 65 S. Ct. 69
(1944) ; Beattie v. Elgin, Joliet and Eastern Railway Co.,
217 F. 2d 863 (C. A. 7, 1954); with the law in the Eighth
Cireuit: Terminal R. Ass’n of St. Louis v. Fitejohn, 165 F.
2d 473 (C. A. 8, 1948) ; Chicago G. W. R. Co. v. Smith, 228
F. 2d 180 (C. A. 8, 1955); Chicago G. W. R. Co. v. Casura,
234 F’. 2d 441 (C. A. 8, 1956).

See also: Brock v. Gulf, Mobile & Ohio Railroad Com-
pany, 270 S. W. 2d 827 (Mo., 1954).

Point ITI.

Where There Is Evidence From Which a Jury Can Infer
the Cause of the Accident in Suit, Instructions Permit-
ting a Finding That Injuries Resulted From a Mere
Accident Are Erroneous.

The trial court charged:

. . If you find that the injury resulted from an
accidental slip on one of a few pebbles, neither the de-

ec

Reasons for Granting the Writ

fendant nor the plaintiff could be said to be negligent,
and you must find a verdict for the defendant, of course.
The railroad isn’t responsible for accidents. They
might happen anywhere.’’ (330a)

To charge thus in the face of this record where the
reasonable inference can be drawn that petitioner slipped
as a result of the presence of pebbles on the road surface is
sheer error. Such an instruction would permit the jury to
make a finding that had no basis in law or in fact.

A large number of cases have laid down this general
principle of law with which the decisions below are now in
conflict.

In Wetterer v. The Atchison, Topeka @& Santa Fe Ry.
Co., 277 Ill. App. 275 (1934), cert. den. 295 U. S. 754, 55 S.
Ct. 835 (1935), the defendant asked the Court to charge as
follows at 298:

‘*The Court instructs you that the fact that if you
believe from the evidence the injury complained of by
the plaintiff was the result of a mere accident, you
must find the defendant not guilty.’’

The court held that it would have been error so to charge.
One may not charge in the abstract. The facts of a case
must be tied in with the allegations and proof. The jury
must give due consideration to the facts in the case and
decide whether under all the evidence there was or was not
negligence. -1s the Wetterer case points out, this instruc-
tion on mere accident is subject to the criticism that it omits
the question of negligence which may have caused the ac-
cident. The question of negligence must be incorporated
in the specific point. This the court below did not do in
this case as it did not in Wetterer.

In Johnson et al. v. Macias, 193 F. 2d 475 (C. A. 5,
1952), the plaintiff while on defendant’s premises was in-
jured when struck by flying fragments of a metal pulley
which disintegrated while revolving at a high speed. The

ee,

Reasons for Granting the Writ 19

court affirmed a verdict for the plaintiff and held that the
trial judge properly refused to charge on the subject of
‘‘ynavoidable accident’’. Said the Court at 479:

‘*The trial court did not err in refusing to give a
charge on ‘unavoidable accident’. An ‘unavoidable’
accident is one which is not occasioned in any degree,
directly or remotely, by lack of due care. If the injury
complained of could have been prevented by the exer-
cise of reasonable prudence, it would not be the result
of ‘unavoidable’ accident. There is no evidence here
tending to show that plaintiff’s injuries resulted from
any cause other than negligence on the part of some one.
The issue of unavoidable accident is therefore not pre-
sented. Magnolia Coca Cola Bottling Co. v. Jordan,
124 Tex. 347, 78 S. W. 2d 944, 97 A. L. R. 1513; Dallas
Terminal Co. v. Darden, Tex. Com. App., 38 S. W. 2d
777. Finding no prejudicial error, the judgment is
Affirmed.’’ (Emphasis ours.)

In Maher v. St. Louis € 8. F. Ry Co., 234 8. W. 1034
(St. Louis Ct. of App., Mo., 1921), the court held that the
trial judge properly refused to instruct the jury “‘. . . that
if the injury received was caused by accident, mischance
or misadventure, and without the negligence of either plain-
tiff or defendant, plaintiff was not entitled to recover’’ (at
1037). The point as submitted failed to tie into the factual
issues in the case. See also Kansas City, M. dé O. Ry. Co. v.
Estes, 228 S. W. 1087 (Tex. 1921) and Pennsylvania R. Co.
v. Ribkee, 174 N. E. 427 (Indiana, 1930).

Indeed, we might note that respondent had not pleaded
in this case that this was a ‘‘mere accident’? or an
‘“‘ynavoidable accident’’. Hence this was not an issue in
this case. The court should not have charged upon subjects
which were not properly made issues in the case.

In Carpenter v. B. € O. R. Co., 109 F. 2d 375 (C. A. 6,
1940), the court so held. At page 379 said:

Reasons for Granting the Writ —

‘‘ Applying the well-recognized rule that in deter-
mining the scope of instructions, the court must keep
in mind the issues as made by the pleadings in the
cause and that no instructions be given which tender an
issue not supported by the pleadings, the court com-
mitted an error in submitting to the jury the issue of
contributory negligence and assumed risk and in charg-
ing the jury that the fellow servant rule applied.’’

The other prejudicial effect which resulted from a
charge such as this was accurately noted by Judge Kalodner
in his dissent below. It is that such a charge is an infer-
ential ruling that there was no absolute duty on the part of
the defendant to provide the plaintiff with a reasonably safe
place to work, thus operating in effect to tak» from the
jury’s consideration the entire ‘‘safe place to work’’ issue
(at page 16a). Thus, not only was that issue emasculated by
the court’s failure to charge the duty of antecedent inspec-
tion, but what little life that might have been left in it was
destroyed by this inferential ruling.

In so doing, the courts below give recrudescence to the
rule of Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34
S. Ct. 635 (1914) declared no longer to be the law in
Wilkerson v. McCarthy, 336 U. S. 53, 69 S. Ct. 413 (1949).

Point IV.

A Jury Charge in an F. E. L. A. Case Which Places Upon
the Plaintiff the Burden of “Convincing” the Jury of
Negligence and Exonerates Defendant of Liability in
the Absence of That “Conviction” or “If There Is Just a
Doubt” in the Jury’s Mind Imposes Upon Plaintiff a
Prejudicial and Patently Erroneous Burden of Proof.

The concept of different burdens of proof in civil and
criminal cases is part of the bedrock of Anglo-Saxon law.
The criminal accused is shielded by a number of funda-
mental safeguards one of which is that a finding of guilt
can be made only after the prosecution has carried the

Reasons for Granting the Writ 21

great burden of proving guilt ‘‘beyond a reasonable doubt.’’
This is the heaviest burden of proof known to our law. With
that onerous burden this petitioner was shackled in an
F. E. L. A. action.

In most civil cases, and certainly in F. E. L. A. actions,
the plain*iff bears no such burden. He need only prove his
case by a mere preponderance of the evidence. It is primer
law that there is a great difference between the burdens of
‘*preponderance of the evidence’’ and ‘‘beyond a reason-
able doubt.’’ In order to meet the test of preponderance
of the evidence all that is necessary is that the evidence in
the plaintiff’s case merely outweigh that in the defendant’s
ease, so that it tips the scale in the plaintiff’s favor or
stated simply: the plaintiff need only show that he has a
better case than defendant. To require in an F. E. L. A.
case that the jury be ‘‘convinced’’ by argument to belief
beyond doubt is to place upon a plaintiff at least as heavy
a burden as that imposed on the prosecution in a criminal
case, and, of course, it profoundly diminishes railroad de-
fendants’ exposure to verdicts against them. The whole
remedial purpose of the F. E. L. A. is thus subverted. This
is precisely what occurred in the case at bar.

The trial court in this case charged the jury as follows
at Page 329(a):

‘*. . . If, after considering all the evidence, the ques-
tion of whether or not the defendant or its employees,
other than the plaintiff, of course, were negligent in
failing to use reasonable care to provide plaintiff with
a safe place to work is so evenly balanced in your mind
that you have no conviction, then you must find for the
defendant. It is her burden to convince you that there
was this negligence. . . .’? (Emphasis supplied.)

Further at Page 333(a) the Court went on to say in
emphatic reiteration of this manifestly erroneous state-
ment of law as to burden of proof:

*asons for Granting the Writ

‘‘Now, this is one of the big points for you, this ques-
tion of whether the plaintiff has proved to you by a
preponderance of the evidence that there was a failure
to use reasonable care under all these circumstances.
There she was with her galoshes, her overalls, her work
jacket. The evidence must do more than raise a doubt
in your mind on these points, if plaintiff is to sustain
the burden. If there is just a doubt in your mind, you
must bring in a verdict for the defendant, and that ends
your consideration of the case. You don’t need to go
any further... .”’ (Emphasis supplied.)

The net effect of these instructions was to impose upon
plaintiff the burden of ‘convincing”’ the jury which Web-
ster’s New Collegiate Dictionary defines to mean ‘‘to bring
by argument to belief beyond doubt.’’ Such has never been
the burden of proof in a civil jury case, least of all in
F. E. L. A. cases. The majority of the Court of Appeals,
straining to avoid the sheer error of the charge, affirmed
the trial court’s language, saying at page 8a:

‘‘In any event there must surely be a conviction in the

minds of the jurors before they may bring in a verdict

for the plaintiff. They must be convinced or satisfied
[footnote] in their minds that the plaintiff is entitled
to their verdict.’? (Emphasis supplied.)

As Judge Kalodner so capably demonstrates in his
dissent, certainly this is not the law. It is indeed note-
worthy that the majority below made no effort to deal with
the cases cited and discussed by Judge Kalodner. This
refusal is the source of the error and conflict now existing
as between the Third Circuit on the one hand and all state
courts of last resort and Courts of Appeals which have
ruled on the problem.

In Larson v. Jo Ann Cab Corp., 209 F. 2d 929 (C. A. 2,
1954), Judge Frank acknowledged the state of authorities
at Page 930:

Reasons for Granting the Writ 23

‘‘Courts and commentators have said that, in the ordi-
nary civil suit, usually a judge commits reversible error
if he instructs the jury that the plaintiff cannot re-
cover unless ‘he convinces’ them (or the like). [Foot-
note to authorities] Such a charge, it is maintained in-
dicates something midway between a ‘preponderance’
and ‘beyond a reasonable doubt,’ and should therefore
be reserved for certain exceptional sorts of civil cases
where more than a ‘preponderance’ is required. . . .”’

He recognized the objections to the court’s failure to
abide by the rule applicable when he stated at Page 935:

‘‘Nevertheless, at least until such time as we have
satisfactory returns from checks of popular reactions
to the traditional formulas, we think we should ad-
here to the ruling that, in an ordinary civil suit, such
as the instant case, words like ‘convince’ and ‘con-
viction’ should be shunned in a jury charge. . . .”’

Any attempt to distinguish Larson on grounds that the
above quoted language was dicta must fail in the light of
Johnson v. Erie Railroad Co., 236 F. 2d 352 (C. A. 2, 1956)
where the law in the Second Circuit is laid down very
clearly and in the same tenor as Larson. Johnson should
have been dispositive here. There the trial court had
charged that it was up to the plaintiff to prove the medical
side of his F. E. L. A. case with ‘‘reasonable certainty.’’
The unanimous Court found that this instruction was er-
roneous in holding at Page 354:

‘¢. | . At least as to injuries actually suffered prior

to the trial, it was incumbent on the plaintiff to prove

a causal connection with the defendant’s negligence

only by a fair preponderance of the evidence : to require

proof to a ‘reasonable certainty’ imposed an excessive
burden.’’

In the case at bar the trial judge not only required
proof at the level of ‘‘a reasonable certainty’’ by using the

24 Reasons for Granting the Writ

language as to ‘‘just a doubt in your mind,’’ but went even
further when he spoke in terms of ‘‘conviction.’’ This did
nothing less than lay upon plaintiff the burden of the prose-
cution in a criminal action.

The language in the case at bar as to ‘‘doubt”’ is strik-
ingly similar to language charged in the Johnson case,
supra and quoted at Page 355:

‘|. éf you have any doubt about it then he [the

plaintiff] has not sustained the burden of proof which

the law imposes upon him.’’

Of that instruction Judge Hincks said at Page 355:

‘That statement was erroneous. Notwithstanding a
doubt thus engendered a jury might yet properly find
that the plaintiff had sustained the burden under which
he labored.’’

State courts as well as Federal Courts recognize the
error of the language used in the case at bar. See Nelson
v. Lee, 32 So. 2d 22 (Ala., 1947); Hill Grocery Co. v.
Wilson, 89 So. 2d 687 (1956); Se-Ling Hosiery, Inc. v.
Margulies, 364 Pa. 45, 73 A. 2d 387 (1950); Botta v.
Brunner, 42 N. J. Super. 95 (1956).

Point V.

A Jury Charge in an F. E. L. A. Case Which Instructs That
« _ . [the Jury] Should No More Be Swayed by
Sympathy for the Plaintiff Than for the Widows and
Orphans Who May Be Receiving Dividends or Interest
From [Defendant Railroad] and Who May Need That
Income for Themselves and for Their Families” * Is

. Highly Prejudicial and in and of Itself Commands the
Grant of a New Trial if a Verdict for Defendant Is
Returned.

As we have shown, supra, this charge was an extraor-
dinary concentration of error. Perhaps the single most

3. 325(a).

Reasons for Granting the Writ 25

shocking and prejudicial aspect of it was the instruction
quoted in the heading of this Point, supra.

At the very outset of the charg: the trial judge errone-
ously struck out one whole theory of liability. Having
thus improperly sapped petitioner’s cause of action of much
of its strength, he immediately thereafter fatally infected
what little was left of her case with the above-quoted in-
struction.

In attempting to justify the instruction, the majority
below stated at page 3a:

««. | , [the trial judge] was not, as the plaintiff
argues, bringing into the case for the jury’s considera-
tion additional parties who had no place there, as was
done in the cases which the plaintiff cites. On the
contrary he was obviously seeking to eliminate all such
extraneous parties on both sides from the jury’s con-
sideration and in this graphic way to make it clear to
them that no sympathy of any sort for either side
should play any part in their decision.’’

Fairly paraphrased, this statement suggests that the
way a trial judge should teach objectivity is to bring ex-
traneous material into a case and then tell the jury to dis-
regard it. It is a curious epistemology which expects a jury
to learn objectivity by being asked to ignore the emotionally
charged contrast of needy widows and orphans—untold
numbers of them—pitted against one litigating claimant.

These were widows and orphans of whose existence,
we hasten to add, there was not a shred of proof in the
entire record of the case, and of whose dependency on the
dividends and interest from respondent there was an
equally total failure of proof.

In the terms of the trial judge and the majority below,
this is ‘‘neutraliz[ing]’’—a concept on these facts approxi-
mately as valid as unscrambling an egg.

4. See “Point I”, supra.

26 Reasons for Granting the Writ

Even assuming, pro arguendo, that the comments of
petitioner’s counsel were not proper, this utterance by the
trial judge can no more be justified in law than in instruc-
tional psychology. If the trial judge thought it was incor-
rect, he should have charged the jury to ignore that refer-
ence and thus take it from their consideration, a recognized
procedure he had no hesitation in using when he charged
competent evidence out of the case So too he could have
ordered a mistrial or set aside a verdict for petitioner.

The majority below, so quick to invoke the trial judge’s
right of ‘‘neutralizing’’ alleged prejudice with rampant
prejudice, has failed to heed the obligations of the rule laid
down within the recent past by its very own court: that
counsel may not reply in kind to improper remarks made
by opposing counsel. Robmson v. Pennsylvania R. Co., 214
F. 2d 798 (C. A. 3, 1954).

If recrimination by counsel be barred, how much more
unseemly is it that the court indulge the equivalent of re-
crimination and then euphemize it as ‘‘neutralizing.’’ We
protest not the motive but the effect of such behavior, and
that effect is more prejudicially telling when accomplished
by a court than it would be if attempted by zealous counsel
in the heat of trial because it is invested with the dignity
and authority of the court.

The instruction complained of was prejudicially argu-
mentative and erroneous, inexcusable on the theory sought
to justify it below, and a radical departure from traditional
concepts of fair trial. Quercia v. U. S., 289 U. S. 466, 53
S. Ct. 698 (1933); Sperber v. Connecticut Mut. Life Ins.
Co., 140 F. 2d 2 (C. A. 8, 1944), cert. denied 321 U. S. 798,
64 8. Ct. 939 (1944) ; Knapp v. Kinsey, 232 F. 2d 458 (C. A.
6, 1956), cert. denied 352 U. S. 892, 77 S. Ct. 131 (1956) ;
Cook v. U. 8., 18 F. 2d 50 (C. A. 8, 1927) ; Boatright v. U. 8.,
105 F. 2d 737 (C. A. 8, 1939) ; Stoneking v. U. S., 232 F. 2d
385 (C. A. 8, 1956), cert. denied 352 U. §. 835, 77 S. Ct. 54

5. See “Point I”, supra.

27

Conclusion

(1956) ; Virginian Railway Co. v. Armentrout, 166 F. 2d 400
(C. A. 4, 1948). Identical conduct has been declared prej-
udicial reversible error in Pennsylvania, where this trial
court sat. Narcisco v. Mauch Chunk Twp., 369 Pa. 549,
87 A. 2d 233 (1952); Knight v. Allegheny County, 377 Pa.
502, 105 A. 2d 141 (1954).

If this error is countenanced, and not corrected by
grant of certiorari and reversal of the judgment below, the
mischief to which it will lead will be immediate. It is a
bold invitation to every corporate defendant in personal
injury actions—F. E. L. A., Jones Act, common-law neg-
ligence—to invoke the pitiful, irrelevant (and unproven)
image of needy widows and orphans dependent upon de-
fendants for dividends and interest whenever sympathy—
real or otherwise—comes into a plaintiff’s case. The argu-
ment such defendants will urge is «s foreseeable as the
mischief: ‘‘If courts can ‘neutralize’ this way, surely we

can too.’’

CONCLUSION.

The judgment in the case at var was the result of seri-
ous and prejudicially erroneous errors of law justification
for which was attempted in the decisions supporting the
judgment below. Those decisions are in direct conflict with
a mass of consistent, authoritative law in this court, fed-
eral Courts of Appeal and state courts of last resort on a
number of vital aspects of the Federal Employers Liability
Act and civil trial by juvy generally.

Unless corrected here by a grant of certiorari, reversal
and new trial, the errors below will deprive petitioner of
rights granted her by solemn Act of Congress, ramify into
emasculating administration of the F. E. L. A. in courts
throughout the entire nation and thus deprive countless
other employees of interstate carriers by rail of the bene-
fits of this remedial legislation. The errors below also pose

oe

28 Conclusion

the immediate threat of serious disruption of long standing
fundamental rules governing civil trial by jury generally.

This petition for a writ of certiorari should therefore
be granted.

Respectfully submitted,
B. Naruantet Ricuter,
Szyrmovr I. Tot,
Barsara Ann Durry,
RicutTer, Lorp anp Levy,
Counsel for Petitioner.

APPENDIX.

UNITED STATES COURT OF APPEALS
For tae Turep Circuir

No. 11,908

LUCILLE H. BURCH,

Appellant
v

READING COMPANY

AppgeaL From tue Unrrep Srares District Court ror THE
Bastern District or PENNSYLVANIA

Argued November 5, 1956

Before Maris and Ka.opner, Circuit Judges, and WorrTen-
DYKE, District Judge.

Opinion of the Court.
(Filed January 8, 1957)

By Manis, Circuit Judge.

This is an appeal by the plaintiff from a judgment en-
tered on a verdict in favor of the defendant in an action
brought under the Federal Employers’ Liability Act to
recover for injuries suffered by the plaintiff while working
as a track laborer for the defendant railroad. The plaintiff
asserts that the trial judge erred in certain trial rulings
and instructions to the jury. All the matters complained
of were fully considered by the district court in an elaborate
opinion by Judge Van Dusen denying the plaintiff’s motion

(1a)

2a Opinion of the Court

for a new trial. 140 F. Supp. 136. Finding ourselves in
full accord with what is there said we conclude that the
judgment should be affirmed. To what Judge Van Dusen
has said we need add merely a few comments with respect to
three of the objections raised to the trial judge’s charge.

The plaintiff was injured on November 27, 1950 while
working as a member of a railroad section gang at Scott’s
Lane crossing in the Hast Falls section of Philadelphia.
That morning her task was to carry dirt in a shovel from
a pile by the side of Scott’s Lane below the crossing to fill
in holes under the rails of the tracks in the crossing. She
had been engaged in this work for about an hour when on
crossing Scott’s Lane with an empty shovel returning from
the tracks toward the pile of dirt she fell and broke her
ankle. It was for this injury that she sought to recover
damages in the suit before us.

At the time of the trial the plaintiff was a widow 55
years of age. She testified that she had raised two chil-
dren, not her own, both of whom were then grown and no
longer living with her. In his closing argument to the jury,
counsel for the plaintiff laid much stress on this fact, ap-
pealing for a verdict which would enable her to be ‘‘a
mother to little children that needed it’’ and to make it
possible for her to leave something ‘‘to those who are
near and dear to her’’.. To neutralize any possible preju-
dice resulting from this appeal on behalf of nonexistent
‘little children’? the trial judge felt it was his duty, as he
states in his opinion,? to charge the jury as follows:

‘‘If you are sympathetic or prejudiced in favor
of or against either the plaintiff or the defendant, you
should not allow such sympathy or prejudice to in-
fluence you at all in your verdict. You should no more
be swayed by sympathy for the plaintiff than for the
widows and orphans who may be receiving dividends

1. The exact used by counsel is quoted in the opinion
of the district court, 140 F. Supp. 136, 150-151.
2. 140 F. Supp. 136, 151.

Opinion of the Court 3a

or interest from the defendant company and who may
need that income for themselves and for their families.
No sympathy of any sort fur either side should play
any part in your decision.’’

While this language is perhaps not what this court
would have chosen we cannot hold that it was error for the
trial judge so to charge under the circumstances. He was
not, as the plaintiff argues, bringing into the case for the
jury’s consideration additional parties who had no place
there, as was done in the cases which the plaintiff cites.
On the contrary he was obviously seeking to eliminate all
such extraneous parties on both sides from the jury’s con-
sideration and in this graphic way to make it clear to them
that no sympathy of any sort for either side should play
any part in their decision. A federal trial judge has the
right, indeed the duty, to do this.’ And he has a wide dis-
cretion as to the manner of doing it.

We must assume that jurors are intelligent and con-
scientious individuals, each with a background of knowl-
edge and experience. They are not robots who come to the
courthouse with minds tabula rasa and who respond me-
chanically to every impression they receive in the court
room. On the contrary they are expected, as by explicit
direction of the trial judge this jury were, to use their
common sense and their experience in the affairs of life
in evaluating the testimony and reaching a verdict. It
would be naive to assume that a group of intelligent jurors
did not know, what is common knowledge, that a large rail-
road corporation such as the defendant here is very likely
to have among its stockholders widows and orphans who
receive income from its dividends. To thus point out that
sympathy might enter into the picture on the defendant’s
side as well as the sympathy for which the plaintiff’s coun-
sel had appealed, and to direct that all considerations of
sympathy on either side be left wholly out of their delibera-

3. See N. Y. Central R. R. Co. v. Johnson, 1929, 279 U. S.
310, 318.

4a Opinion of the Court

tions was in our view within the discretionary power of the
trial judge in this case.

Another matter calling for additional comment relates
to the charge of the trial judge with respect to the plain-
tiff’s burden of proof. In this connection the trial judge
said to the jury:

‘*The plaintiff has the burden of proving to you by
the weight or the fair preponderance of the evidence
that the defendant or its employees, other than the
plaintiff, did not provide her with a reasonably safe
place to work and that this negligence caused, in whole
or in part, this injury to plaintiff. If, after consider-
ing all the evidence, the question of whether or not the
defendant or its employees, other than the plaintiff,
of course, were negligent in failing to use reasonable
care to provide plaintiff with a safe place to work is
so evenly balanced in your mind that you have no con-
viction, then you must find for the defendant. It is her
burden to convince you that there was this negligence.
Also, if the question of whether or not such negligence
was a factor in causing the injury is so evenly balanced
in your mind that you have no conviction, then you
must find for the defendant.

‘*Now, this is one of the big points for you, this
question of whether the plaintiff has proved to you by
a preponderance of the evidence that there was a fail-
ure to use reasonable care under all these circum-
stances. There she was with her galoshes, her overalls,
her work jacket. The evidence must do more than
raise a doubt in your mind on these points, if plaintiff
is to sustain the burden. If there is just a doubt in
your mind, you must bring in a verdict for the defend-
ant, and that ends your consideration of the case. You
don’t need to go any further. On the other hand, if
you are convinced by the preponderance of the evi-

Opinion of the Court 5a

dence that the defendant or its employees, other than
the plaintiff, were negligent, and that this negligence
was a factor in causing the injury, then you must find
for the plaintiff.

“*If you find for the plaintiff for the reasons stated
above, then you must consider the damages. The mere
fact that I instruct you on the subject of damages must
not be considered as an indication of my views on
whether or not the plaintiff has sustained her burden
of proving that the defendant or its employees were
negligent in failing to provide her with a safe place to
work. If you find that the plaintiff sustained the
burden of proving the defendant negligent, through
its failure to use reasonable care in providing a safe
place to work, then you must carefully consider all the
following elements of damage: First, loss of past
earnings; second, loss of future earnings; third, pain,
suffering, injuries, mental and physical; fourth, medi-
cal expenses, past and future.

**. . . I must point out to you the various possi-
bilities in accordance with the contentions of counsel,
and it is for you to find the facts, and nothing I said
should be allowed to make you feel that the plaintiff
had not sustained her burden of proving this case or
that she had. That is for you to decide. That is your
problem. All I can tell you is the law, which is that the
defendant has the duty to use reasonable care and to
provide this plaintiff with a reasonably safe place to
work under ail the circumstances.’’

The plaintiff objects to these instructions upon three

grounds. (). is that it was error, as she argues, for the
trial judge w use the words ‘‘conviction’’ and ‘‘convince’’

ia explaining to the jury the nature of their fact finding

6a Opinion of the Court

duty in this civil case. Another is that it was equally
erroneous to use the word ‘‘doubt’’ for that purpose. The
third is that it was error in the two portions of the charge
last quoted not to add to each reference to the plaintiff’s
burden of proof the statement that the proof need only be
made by a preponderance of the evidence. We are satis-
fied that there is no merit in the plaintiff’s contentions in
th’. regard and that the portions of the charge which we
have quoted, considered as a whole, adequately informed
the jury as to their legal duty in the case. The problem in-
volved in the first two contentions, however, calls for a
little more searching analysis than is customarily given to
it. For we are here dealing with ancient legal phrases,
cliches which may have precise meaning for judges and
lawyers but which must be far less than clear to lay jurors.‘
It is, however, with the success of these statements in il-
luminating the minds of jurors as to their fact finding duty
that we must be concerned.

The classical statement of the burden of proof in an
ordinary civil case such as this is that the facts must be
proved by a ‘‘preponderance of the evidence’’. But there
are obvious difficulties with this metaphorical description
of the plaintiff’s burden of persuasion. It does not refer
directly to the fact finding process itself but merely to the
character of the evidence required and even there is less
than clear since it refers only to the ‘tweight’’ of the evi-
dence. The latter ambiguity is perhaps cleared up by the
usual statement to the effect that ‘*preponderance’’ is not
dependent upon the number of witnesses testifying on
either side but rather upon the credibility which, in the

. This is hically indicated by the results of a uestionnaire
sent up former jurors by Judge Walter “Wanamaker of Akron, Ohio.
In answer to the question, “What propositions of law were most

difficult to understand?” the answers were:
“a. Preponderance of the evidence 232

b. Reasonable doubt a
c. Negligence
d. Proximate 203.”

lo cause
Trial by Jury, 1937, 11 U. of Cin. L. Rev. 119, 192.

Opinion of the Court Ta

light of all the evidence in the case, the jury attributes to
their testimony and the effect of that testimony in inducing
belief in its truth. But even so, it has been suggested with
much force that the use of this ancient metaphor re-
ferring, <8 it does, to the ‘‘greater weight’’ of evidence is
intrinsically of very limited usefulness in giving to a juror
real guidance as to his duty. One cannot weigh evidence
as on a scale. Certainly no mechanical device is available
to jurors to measure the truthfulness of a witness or the
accuracy of his memory.

Moreover, as we have suggested, the ‘‘preponderance
of the evidence’’ formulation is not directed to the basic
procedural problem confronting the jury, that is, the degree
of accuracy in finding the facts which they are being asked
to employ in reaching their verdict in a civil case. Cer-
tainly they are not required to find the facts to an absolute
certainty or even beyond a reasonable doubt, as in a criminal
case. But we do not think it is wrong to say, as the trial
judge in this case did, that the jury must be convinced by
the fair preponderance of the evidence that the facts were
as the plaintiff asserted them to be.

It would doubtless be much more comprehensible to a
jury if they were told, as Professor McBaine has suggested
in his thoughtful essay on the subject,* that the plaintiff’s
burden is to convince them upon all the evidence before them
that the facts asserted by the plaintiff are more probably
true than false." This, we think, is the intended effect of

5. See Judge Frank’s discussion of the subject in Larson v. Jo
Ann Cab Corp., 2 Cir. 1954, 209 F. 2d 929. See also McBaine,
Burden of Proof: Degrees of Belief, 1944, 32 Cal. L. Rev. 242, 247;
McCormick on Evidence, 1954, p. 676.

6. McBaine, Burden of Proof: Degrees of Belief, 1944, 32 Cal.
L. Rev. 242, 262. And see Morgan, The Law of Evidence, 1941-1945,
a L. Rev. 481, 492-493, and McCormick on Evidence, 1954,
33 7. In Beckwith v. Town of Stratford, 1942, 129 Conn. 506, 29
A. 2d 775, Chief Justice Maltbie described the standard of proof in a
civil case as “proof which produces ‘a reasonable belief of the
ability of the existence of the material facts’”. Likewise in M v.
Slawsby, 1915, 77 N. H. 555, 94 A. 193, Chief Justice Parsons said:

8a Opinion of the Court

the ‘‘preponderance of the evidence’’ rule and it would
place the emphasis upon the nature of the function which
the jurors are being asked to perform and the degree of
belief which must be produced in their minds before the
plaintiff is entitled to a favorable finding from them.

In any event there must surely be a conviction in the
minds of the jurors before they may bring in a verdict for
the plaintiff. They must be convinced or satisfied * in their
minds that the plaintiff is entitled to their verdict. This, of
course, need not be a conviction of the certainty of the
facts they find,® but they must at least be convinced that the
evidence considered as a whole, i ‘*preponderance’’ to use
the traditional term, indicates that the facts asserted by the
plaintiff are probably true. The contrast here is between
two different states of mind, a state of belief and a state of
doubt or uncertainty. If, as the trial judge suggested in his
charge in this case, the eivdence merely raises a doubt in the
jurors’ minds as to whether or not the facts asserted by the
plaintiff are true or if in their minds the probabilities of
those facts being true or false appear equal the plaintiff
has not met his burden of proof and a finding for the plain-
tiff would be inconsistent with the jurors’ duty to render a
true verdict.

We are satisfied that in the portions of the charge to
which the plaintiff objects and which we have quoted above
the trial judge adequately explained to the jury their duty
in this regard. We are not impressed with the plaintiff’s

the burden resting upon him.” And see Northwest States Utilities
Co. v. Ashton, 1937, 51 Wyo. 168, 65 P. 2d 235; Mutual Life Ins.
Co. of New York v. Springer, 1937, 193 Ark. 990, 104 S. W. 2d

In this setting the two verbs appear to be yms.
M vy. Waterhouse, 1896, 113 Cal. 407, 45 P. 866; 20
ur., Evidence, §§ 1249, 1250.

Opinion of the Court 9a

lent in connection with each of the references which he made
later in his charge to the plaintiff’s burden of proof. He
had already adequately, as we have pointed out, instructed
the jury as to their duty to follow the preponderance rule
and we certainly cannot say that it was error not thus to
reiterate summary references to that rule.

The other matter upon which we shall comment briefly
relates to the instructions given by the trial judge with
respect to the defendant’s duty to provide the plaintiff
with a safe place to work. The following portion of the
charge is objected to:

‘*Reasonableness varies with the place and the
danger of the work, Less diligence is required to con-
stitute reasonable care where the danger is slight than
would be required where the danger is great. If you
find that the injury resulted from an accidental slip on
one of a few pebbles, neither the defendant nor the
plaintiff could be said to be negligent, and you must
find a verdict for the defendant, of course. The rail-
road isn’t responsible for accidents. They might hap-
pen anywhere.’’

In considering the object raised to this language it must
be borne in mind that the trial judge affirmed and read to
the jury 8 of the plaintiff’ points for charge which related
to the applicable principles of law with respect to the de-
fendant’s duty to provide the plaintiff with a safe place to
work. Among these were the plaintiff’s 7th point, as fol-
lows:

‘*7, If you find that the plaintiff slipped, tripped
or fell because of the presence of loose stones or pebbles
which were present in the highway where she was
obliged to work or where the defendant knew or should
have known she would be working and that such condi-
tion was one which the railroad company knew or
should have known was one whick aight cause her to
fall and suffer injury, then you may find that the failure

Opinion of the Court

of the railroad company to make the place reasonably
safe or to provide a reasonably safer way for the
plaintiff to perform her duties was negligence. If you
find that the plaintiff sustained her injuries in whole or
in part by reason of such negligence on the part of the
defendant railroad company then your verdict must be
for the plaintiff.’’

It must also be remembered that the plaintiff’s place of
work at the time of her injury was on a public street upon
which she slipped and fell. The evidence was sharply
conflicting as to whether the street was in a dangerous
condition, being covered with loose pebbles, pr whether it
provided a safe surface for walking with only a few pebbles
scattered here and there. In the light of the charge as a
whole and the affirmance of the plaintiff’s points the instruc-
tion complained of permitted the jury to find that the street
upon which the plaintiff was walking was a reasonably safe
place to work and that her injuries were the result of a
purely accidental slip by her on one of a few pebbles. This
was not error. For contrary to the rule under workmen’s
compensation acts the Federal Employers’ Liability Act
does not impose liability without fault and there is, there-
fore, no liability on the part of an employer under that Act
for injuries suffered by an employee as a result of a pure
accident occurring while working in a reasonably safe place.

The judgment of the district court will be affirmed.

Katooner, Circuit Judge, dissenting

I disagree with the majority’s view that the trial judge
was acting within his discretionary power when he made
reference in his charge to ‘‘. . . widows and orphans who
may be receiving dividends or interest from the defendant
company and who may need that income for themselves and
their families. . . .”

In my opinion the injection into the case of the pecuni-
ary interest of widows and orphans dependent upon income

lla

Opinion of the Court

from their investment in the defendant railroad company’s
securities constituted prejudicial error requiring reversal.

Two wrongs don’t make a right.

Plaintiff’s counsel was clearly out of bounds when he
injected into the case the fact that the plaintiff had raised
two foundlings (long since grown up) as her own and at
least inferentially appealed for a verdict which would permit
further such philanthropy on her part. His conduct war-
ranted withdrawal of a juror or at the very least a vigorous
caution to the jury to disregard this unjustifiable attempt to
invoke its sympathy. The trial judge chose to take neither
one of these available steps but on the other hand, no doubt
unwittingly, chose, as the majority put it, ‘‘to neutralize any
possible prejudice resulting from this appeal on behalf of
non-existent ‘little children.’ ’’?

I fully subscribe to the majority’s view as to the trial
judge’s motive but we cannot give judicial sanction to
fighting fire with fire. Here the trial judge sought to ex-
tinguish the flame of sympathy for foundlings ignited by
plaintiff’s counsel with a countering flame of sympathy for
widows and orphans. Neither the foundlings nor the
widows and orphans were parties to this litigation and
their injection into the case was violative of the rights of
the respective parties and constituted reversible prejudicial
error. Cf. Knight v. Allegheny County, 377 Pa. 502 (1954)
and Narcisco v. Mauch Chunk Township, 369 Pa. 549 (1952).

As to the trial judge’s instructions with respect to the
plaintiff’s burden of proof.

In the first two portions of the trial judge’s charge
which the majority quotes he twice instructed the jury that

1. The trial ju t it this way in his opinion rted at 140
F. Supp. 136 (E. re 1956), at page ° Sygate -

“In view of this emphasis on these ‘little children’ and the plain-
tiff having something to leave to those ‘who are near and dear to her,’
the trial judge felt it was his duty to neutralize any possible prejudice
by including in his charge a sentence indicating that there might be

those interested in the defendant who were also in need and included
the following paragraph in his charge :”

12a Opinion of the Court

it must find for the defendant if it had ‘‘no conviction’’ and
also twice instructed it that it must be ‘‘convinced’’ of the
defendant railroad’s negligence supplementing those in-
structions with the admonition that ‘‘If there is just a doubt
in your mind, you must bring in a verdict for the de-
fendant .. .’’

I disagree with the majority’s view that the instruc-
tions stated did not constitute prejudicial error.

As was stated by Judge Frank in Lerson v. Jo Ann Cab
Corp., 209 F.2d 929, 930, 935 (2d Cir. 1954):

‘‘Courts and commentators have said that, in the
ordinary civil suit, usually a judge commits reversible
error if he instructs the jury that the plaintiff cannot
recover unless he ‘convinces’ them (or the like). Such
a charge, it is maintained indicates something midway
between a ‘preponderance’ and ‘beyond a reasonable
doubt,’ and should therefore be reserved for certain
exceptional sorts of civil cases where more than a
‘preponderance’ is required . . . Nevertheless... .
we think we should adhere to the ruling that, in the
ordinary civil suits . . . words like ‘convince’ and
‘conviction’ should be shunned in « jury charge.’’*

In common parlance ‘‘conviction’’ is synonymous with
‘‘certainty’”’ and ‘‘convince”’ is ‘‘to cause ‘o feel certain.’’*

In instructing the jury that it must tind for the defend-
ant if it had ‘‘no conviction’’ and that plaintiff had the
burden ‘‘to convince’’ it that defendant was negligent, the
trial judge imposed a burden of proof on plaintiff far in
excess of that imposed by the ‘‘preponderance of the evi-
dence’’ rule.

In Nelson v. Lee, 32 S.2d 22, 24 (1947) the Supreme
Court of Alabama held that reversible error was committed
by the trial judge in giving the following instruction:

2. In that case no exception was taken to the charge as made and

the Court held it was not adequately reserved for review.
3. Webster’s New World Dictionary of the American Language,

College Ed. 1956.

Opinion of the Court 13a

‘*T charge you, gentlemen of the jury, that if after a
consideration of all the evidence in this case your
minds are left in a state of doubt and uncertainty so
that you are not reasonably satisfied from the evidence
that on the occasion complained of the defendant was
guilty of negligence in and about the transportation,
handling or removal of the rifle in question you cannot
return a verdict in favor of the plaintiff and against
the defendant.’’

In doing so it stated that ‘‘. . . this charge placed too high
a degree of proof upon the plaintiff.’’

The same court in the recent case of Hill Grocery Co.
yv. Wilson, decided September 13, 1956, 89 S.2d 687, ruled
that the trial judge had correctly, on a motion for a new
trial held that he had committed prejudicial error when
he had given the following instructions to the jury:

‘*. . . Where the evidence leaves it uncertain as to
whether the cause of the injury was something for
which the defendant was responsible, or something for
which the defendant was not responsible, there is a
failure of proof, and unless you are reasonably satisfied
from the evidence in this case that the negligence of the
defendant, if any, was the proximate cause of the in-
juries sustained by Mrs. Wilson, you cannot return a
verdict in favor of the plaintiff and against the de-
fendant.’’

In ruling that the trial judge had acted correctly in
granting a new trial the Supreme Court of Alabama said
of the instructions which had been held to be prejudicial
error:

‘*. . . if the jury had the slightest uncertainty as to

whether the defendant was responsible for the injury,

they were required to find that there was failure of
proof as to such fact. The effect of the charge is to
place the burden upon the plaintiff to show beyond all
uncertainty that the defendant was responsible for the

14a Opinion of the Court

injury sustained by the plaintiff. As pointed out in the
foregoing authorities, the charge places too high a
degree of proof upon the plaintiff.’’

In Botta v. Brunner, 42 N.J. Super 95 (1956), the
Appellate Division of the Superior Court of New Jersey
held that the trial judge had committed prejudicial error
when he charged the jury that it was incumbent upon the
plaintiff ‘‘. . . to prove by clear convincing evidence that
her injuries were the result of the accident,’’ and that ‘‘The
evidence must, therefore, establish with reasonable cer-
tainty that the injuries and losses for which you award any
damages are properly attributable to the accident.’’ With
respect to these instructions the Court stated:

‘‘There can be no doubt that the court’s imposition
upon plaintiff of the burden of producing ‘clear, con-
vincing’ evidence that her claimed ‘injuries’ easily to
be understood by the jury in the added sense of dis-
abilities, were the result of the accident, assessed her
with a probative burden exceeding what the law calls
for in an ordinary civil action.’’

In Johnson v. Erie Railroad Company, 236 F.2d 352,
354, 355 (2d Cir. 1956), after correctly charging the jury
with respect to the burden of proof the trial judge went on
to say:

‘It is up to you ladies and gentlemen to determine
whether the evidence adduced before you shows with
reasonable certainty that the plaintiff’s alleged injury
or future disability, if you find he has any, resulted
from the aggravation of the previous condition, or,
rather from the previous condition itself, in order to
warrant a recovery of damages in this case.’’

The Appellate Court held that the instruction given
was erroneous, stating:

‘¢. | . At least as to injuries actually suffered prior
to the trial, it was incumbent on the plaintiff to prove a

Opinion of the Court lida

causal connection with the defendant’s negligence only
by a fair preponderance of the evidence; to require
proof to ‘a reasonable certainty’ imposed an excessive
burden.’’ (Emphasis supplied)

The Court also held erroneous the following instruction:

‘*. . . I don’t want to review that evidence, but it is
up to you to decide whether you want to believe one or
the other, because if you have any doubt about it then
he (the plaintiff) has not sustained the burden of proof
which the law imposes upon him.’’

Said the Court of that instruction:

‘‘That instruction was erroneous. Notwithstanding a
doubt thus engendered a jury might yet properly find
that the plaintiff has sustained the burden under which
he labored.’’

In the third and fourth portions of the trial judge’s
instruction relating to plaintiff’s burden of proof, quoted
by the majority the jury was thrice told that plaintiff must
sustain ‘‘the burden of proving’’ the defendant’s negli-
gence. That of course was reversible error since the in-
structions omitted any reference to a ‘‘fair preponderance
of the evidence.’’

In Se-Ling Hosiery, Inc. v. Margulies, 364 Pa. 45
(1950), the trial judge instructed the jury in a civil action
that the plaintiff ‘‘had the burden of proof’’ and did not add
the phrase ‘‘by the fair preponderance of the evidence.’’
Said the Court at page 50:

‘«. . . Ifa trial judge in a civil case instructs the jury

that plaintiff ‘has the burden of proof’ the defendant

has no cause for complaint, because of what is implicit
in that phrase when it stands alone. However, a plain-
tiff would have grounds for complaint if the jury was
not instructed that ‘burden of proof’ im a civil case
meant only ‘by the fair preponderance of the evidence’

16a Opinic a of the Court

the members of the jury might have the idea that the
phrase ‘burden of proof’ meant some higher degree
of proof than mere preponderating evidence. There-
fore, the omission of the phrase ‘by the fair preponder-
ance of the evidence’ im the judge’s charge im the in-
stant case was something of which the plaintiff could
have justly complained . . .”? (Emphasis supplied)

With respect to the sum total of the instructions as to
burden of proof, above discussed, the following statement
made in Johnson v. Erie Railroad Company, supra, at page
156 is particularly appropriate:

‘¢We need not consider how far separately each of the
statements referred to would require reversal, since
the cumulative effect of the several references is such
as to make the possibility of confusion too great to dis-
regard. We think the plaintiff entitled to a new trial.”’

Because of the view expressed that a new trial should
be granted because of the trial judge’s erroneous and con-
fusing instructions relating to the plaintiff’s burden of
proof, it is unnecessary to dwell at length on her contention
respecting the trial judge’s instruction that

‘©. . . If you find that the injury resulted from an

accidental slip on one of a few pebbles, neither the de-

fendant nor the plaintiff could be said to be negligent,
and you must find a verdict for the defendant.’’

I subscribe to the plaintiff’s contention that this in-
struction was erroneous because it inferentially ruled that
there was no absolute duty on the part of the defendant to
provide plaintiff a reasonably safe place to work and oper-
ated in effect to remove from the jury’s consideration the
‘*safe place to work’’ issue.

JUDGMENT.

This cause came on to be heard on the record from the
United States District Court for the Eastern District of
Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said Dis-
trict Court in this case be, and the same is hereby affirmed,
with costs.

Attest:

Ina O. Creskorr,
Clerk.

January 8, 1957.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1183%3A1. Public record. Not legal advice.