Petition for Writ of Certiorari — New York, New Haven & Hartford Railroad v. Calabritto (No. 873)

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* INDEX °

PAGE

.- The Opinions of the Courts Below vukwesbitees woe

be Jurisdiction She es pe peaens 2

Statutes Involved ...........6200006 een es 2

The Questions Presented ...... Flag Pee Ee cae a

Summary Statement of the Matter Inv end. 3

Specifications of Error ......... Ee 5)

Reasons Relied on for the Granting of = Writ 5:

| err re errr Tee ©. caunanaeneemen a

Statutes Involved | OE A re rr we SA : a

Opinion Court of Appeals .. icles a rae a: a

Coneurring Opinions Court of Appeals ..... App. 7

Judgment ........ Det ot ene cccen sa ae

BS Stipulation and Order Staying Issuance of Man-

ae Ge eckenecess MCU aeRS REE. cae oan App. 13

| TaBLe oF Cases CITED

> Banta v. Union Pacific R. Co., 242 S. W. 2d 34

WE Sckicceieccn: Teh ae tS 8.

Camp. Vv. Atlantic. Coast ’ es R. Co., 36 So. 2d

i Rae SETS Ieee: &

Chicago, R.I. & P. Ry. Co. v. Benson, 185 N.E.

: 244 (Ill, 1933), cert. den. 290 U.S. 636 . 9

: Ford v. New York, N. H. & H. R, Co., 54 F. 2d |

342 1), cert. den. 285 U.S. 549 ......... 7,8 |

rf . » P

P ‘ : ’

ood

. *h

4 - a

PAGE ° :

billy v. Grand Trunk WwW estern R. Co.,-3¥% U. Ss. 2

“S05 (TIMES) ...-<--s aren rae ;

Moore v. Chesapeake & Ohio R. Co., 340 Us

573 (1951) ....--- Nhe eed errr eee 6

Raudenbush v. Baltimore é One R. Co., 160 F.

Dd BEB (1946) 2. cece cece edge ee cece seesers 8:

Reeves v. Chicago, St. P., M. & O. Ry. Co., 19 ;

N.W. 689 (Minn., 1920) ....e. eee ee. 8

-Ritey v. Wabash Ry. Co., 44 SW. 29d 136 (Mo., |

|} Are ere horney rere ere eae gs

Slater v. Chicago, St. P., M. & O. Ry y Co., 178°

N.W. 813: (Minn., 1920) ...----2 eee se 0 9

Tobin v.- Detroit, T. & I. R. Co:, 13 N.E. 2d 739

(Ohio, 1938) .....--.e eee eee eres ey Gay Cure

Zachritz v.. St. Louis, S.F. Ry., 81 S.W. 2d 608

(Mo., 1935), cert. den. 296° of Sere 9

' Oram ap THORITIES CITED

—~

Act of June 7, 1924, e. 355, § 2, 43 Stat. 630 ......

Act of Aug. 14, 1957, Pub. L. 85-135, § 3, 71 Stat.

352, 45 U ot ee ON ee ee ee ee es eee a.

Federal Boiler Inspection Act, as * amended (Act

of Feb. 17, 1911, ¢. 103, § 2, 36 Stat. 913, as

amended by Act of Mar. 4, 4915, e. 169, 6 1.

Wk Wied BOOBY on ccc ce ee nen eee 3,5,6,7.8. 11.

me co hited

‘ill

eauee z PAGE

Federal Boiler Inspection Act, as amended ( Act

of Feb. 17, 1911, ¢. 103, § 2, 36 Stat. 913, 45

U.S.C. § 23, as amended by Agt of Mar. 4,

1915, c. 169, § 1, 38 Stat. 1192 and by Act of

June 7, 1924, ¢. 355, § 2, 43 Stat. 659),

a 23,5, 6,7, 8

Federal Boiler Inspection Agt, as amended, 45

~ US.C. 9 dd 5... --- oer Peer r erty. 9, 12.:

Federal Employers’ Liability Act of: 1908, as -

amended (Act of April 22, 1908, e. 149, § 1,

35 Stat. 65, 45 U,S,C. § 51, as amended by Act

‘of Aug. 11, 1939, ¢. 685, § 1, 53 Stat. 1404), :

+ 25,9, 11-

Federal Safety Appliance Act .(Act ‘of Mar. 2,

1893, ¢. 196, § 4, 27 Stat. 531, 45 U.S.C. § 4),.

2, 3, 7, 8, 11, 12

98 U.S.C. §1254(1) oo. eee ee rece bees eter en ens 2

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IN THE

Supreme Court of the Buited Bates so

OCTOBER TERM, 1960

No.

Tur New York, New Haven anp HARTFORD

RaILroaD COMPANY,

i Petitioner,

.—int—

JERRY J. CALABRITTO,

: ! Respondent.

—

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT’ OF APPEALS

FOR THE SECOND CIRCUIT

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United:

States: “ ,

The petitioner, The New York, New Haven and. .

Hartford Railroad Company, prays that a writ of

certiorari issue to review the judgment of the Court

of Appeals for the Second Cireuit entered in the above

eause on February 21, 1961, affirming a judgment of

the United States Distriet Court ‘for the “Eastern

District of. New York in favor of respondent; and.

respectfully represents: ;

”

The Opinions of the Courts Below

There was no opinion written by the trial court. In

- the Court of*Appeals for the Second Cireuit, the case

was decided by. the court in an opinion written hy

Judve Clark, With separate concurrences written by

1 Jwritt \

_ Judge Waterman and by Judge Friendly. These opi-

ions are not yet officially reported but appedr starting

at. pages 95a and 101a.of the printed record (called

Appendix), and are appended hereto at pages Ap). \-

App. 7, App. 7-App. S8vand App. 8-App. 10, respec:

tively. — |

jurisdiction

1. The jurisdiction of this Court is invoked under

28 U.S.C. § 1254 (1).

2. The judgment of the Court of’ Appeals for the

Second Circuit, affirming the judgment of the District .

Court, was entered on February 21, 1961. It is ay-

» pended hereto at pages App. 11 and App. 32.

Statutes Involved

The statutes involved are the Federal Employers’

Liability Act of 1908, as amended (Act of April 22.

1908, ¢. 149, § 1, 35 Stat. 65, 40 U.S.C. § 51, as amended

by Act of Aug. 11, 1939, ¢. 685, §1, 53 Stat. 1401):

the Federal Boiler Inspection Act, as amended (Act

of Feb, 17, 1911,-c. 103, § 2, 36 Stat. 913, 45 U.S.C. 9 2.

- as amended by Act of: Mar. @, 1915, c. 169, § 1, 38 Stat.

1192 and’ by Act of June 7, 1924, ¢. 355, § 2,.45 Stat.

659); the Federal Safety. Appliance Act (Act of Mar.

)

4: : ‘

2, 1893, e. 196, §4, 27 Stat. 531, 45 U.S.C. $4); the

Federal Boiler Inspection Act, as amended (Act of

Feb. 17, 1911,:¢. 103, § 2, 36 Stat. 913, us amended

by Aet of Mar. 4, 1915, ¢. 169, § 1, 38 Stat. 1192; Act

- of June 7, 1924, ¢. 355, § 2, 43 Stat. 459; Act of Aug.

14, 1957, Pub. L. 85-185, § 3, 71 Stat. 352, 45 U.S.C.

§ 34). a | |

The pertinent portions of these statutes xre ap-

pended hereto at pages 11 and 12. |

Ba)

‘The Questions Presented ©

1. May a jury find a railroad employer negligent

toward its employee because of a transient condition

on one of its locomotives of which it had no actual

or constructive. notice ? as

2. May a jury find a violation of the Federal

Boiler Inspection Act with respect to a transient con-

_--ition on a locomotive that did ‘not arise as u result

of any mechanical or structural defect ?

Summary Statement of the Matter Involved

Respondent was injured on July 19, 1955 at night |

while working as a brakeman with a yard switehing-

crew in petitioner’s West Hump Yard at Cedar Hill,

Connecticut. He slipped and fell crossing the frant

platform of. petitioner’s yard switehing engine as it

was slowly pushing cars toward the hump on Track 9.

Respondent. carried. a standard .brakeman’s lantern

that gave good light. he shone it down ahead of him, -

and he could see where he was going and what he was

doing (18).* The headlight on the front of the

engine was on (18, 41). The floodlights north of Track

9 were also on (18, 39). There was, accordingly, light

from three sources at the point where the fall ve-

curred. |

Respondent says that he saw ‘¢a little sand’’ there,

and also that he saw white brake sand there, around

three or four inches deep, of the type used in engine

sanders (19). He saw no marks in the sand and no —

oil (19). Sand for the sanders was stored in the front

- part of the engine to the right and left of the front

. headlight, in locations marked on Exhibit A with an

arrow and an S (54-55, 84).

Conductor Smith recalled no sand or oil there he-

fore the accident but saw some there and on the engi-

neer’s side afterward (34, 35). He did not state how

much he saw or describe it. Monahan, who was pres-

ent when respondent was removed after the accident,

saw no marks, dirt, or grease on respondent’s light-

colored shirt and pants (41-42). Fireman Fratto sav

a little sand but did not slip or fall erossiug the front

of tke engine before the accident, and saw uo oil or

grease there afterward when helping to pull respond-

ent off, though he did not look for it (56, 64).

’ After respondent was removed, ‘the engine was |

taken out of service and a replacement sent to use for

the rest of the work (35). -

_ The court charged, without exception, that there

‘is no claim of mechanical defect’’ in the engine ( TU).

and there was no proof of any.

* Nurnbers in parentheses refer to the pages of the Appendix.

(

-f

—— PRE Ge J

8 2 Sei WL PRET 125 BASF AES RA abt. 2 LN ba

The accident occurred about 12:30 a.m. (36). Re-

spondent had then been working about a half hour

(12).

The syit in the case was brought under the Federal

Employers’ Liability Act and the Federal Boiler In-

_spection Act. The case was tried before a jury. De-

fense motions for dismissal of the complaint, direction

of a verdict and judgment notwithstanding the verdict °

was denied. The judgment in favor of respondent

was affirmed on appealed. | _ | ”

Specifications of Error

The Court of Appeals for the Second Circuit erred:

1. In affirming the judgment of the District Court.

9. In not reversing the judgment of the District

Court and dismissing the complaint for failure of

proof. pares

Reasons Relied on for the Granting of the Writ

. Petitioner believes that the writ should be granted.

for the following reasons: :

This case presents important questions of federal

law which have never been decided by this Court, and

conflicting decisions among state and federal courts.

(a)

On the issue of negligence, there was no proof as

to the amount of oil on the front of the engine, the

kind of oil it was, where it eame from, and how long

before the accident it was there. There was no. proof

that any one knew of its presence there before the-

accident. The only positive proof was that some

-gand with no marks or traces of oil in it was there

before respondent was injured, that no one but he

slipped on it, and that there was so little oil that

respondent's clothes: after his fall showed no sigh

of any. i

A jury may not supply proof that is not in the ree-

ord or speculate as to matters beyond reasonable in-

ference from the established facts. |

Moore v. Chésapeake & Ohio R. Co., 340 U. 8.

573 (1951).

The jury in the case at bar has accordingly found

négligencé as to a transient condition of which peti

' tioner hag- no actual or constructive notice, and this

it could not properly do under the. law as it was

charged (77) and as the Court of Appeals in this

ease recognizes it to be (96). ci

If a jury is to be allowed to do this, then a revolu-

tionary. change in the established law of negligence -

is: being permitted to take place. Such a change |

should not be accomplished without this Court's

passing upon it.

(b)

The second issue in this ease presents a question

of law not finally determined by this Court: Whether

a transient condition not resulting from any mechati--

‘eal or structural defect in the engine on which it is

present constitutes a violation of the Federal Boiler

Inspection Act. See the appendix. to this _petition

een ik OLE PRADA EP LILI S ELLIS LT ARE ae

| for the text of this Act and of the .Federal Safety

; °

. «

Appliance Act.

The answer to this question depends on whether

‘the dictum in this Court’s opinion in Lilly v. Grand

Trunk Western R. Co., 317 US. 481, 487-489 (1943)

‘ extending coverage of the Boiler Inspection Act is _

- to be limited to the facts of that case or is to be ex-

panded to a broad, — doctrine.

The opinions of the tw coneurring ‘judges in the

ease at bar (101-103) apparently believe’ themselves

bound by a broad interpretation of that dictum, but

do so reluctantly and with a plea that the law on

this point needs to be claritied by a square-cut deci-

sion of this Court. |

The Lilly y ease involved a fall by a railroad em-

ployee on ice on the top of’a locomotive. tender. A

special 1.C.C. regulass n required that ‘*Top of tender

behind fuel spaee shall be. kept clean and ‘means

provided to carry off waste water.’’. This Court in-

terpreted the.regulation as requiring ‘‘the top of the

tender to be kept free of foreign matter which would

render footing insecure, for example, coal, . dust,

debris, grease, waste water and ice’’ (pp. 486-7), and

held that the word ‘‘¢lean’’ in the regulation meant

mere than manner of -construction or mechanical

_ operation, namely, a ‘‘continuing duty of promoting

the safety of pet Ho ees by removing from the top of

the tender all extraneous stibstances w hich - might

make standing there hazardous’’ (487).

This Court in the Lilly ease distinguished but did

not overrule the decision of the Court of Appeals for

_ the Second ‘Cirenit in Ford v. New York, N. WM. &

a ei &

H. ®. Co., 54 F. 2d 342 (1931), cert. den. 285 US.

7 549, in. which considerable cup grease on the grab

iron of a locomotive tender was held not to violate

the Federal Boiler Inspection Act or the Federal

Safety Appliance Act in the absence of proof that ©

the grease got there through some mechanical .or- °

structural defect of the locomotive ,tender. The

ground used’ by this Court to distinguish the Ford

ease was that no I.C.C. regulation was involved there

(pp. 487-8). . | .

This same distinction was used by the Court of

Appeals for the Third Circuit in Raudenbush \.

Baltimore & Ohio R. Co., 160 F. 2d 363, 366 (1946)

im holding the Lilly case not applicable where an em-

ployee slipped on snow on the steps of a freight car

and claimed a violation’ of the. Federal Safety Appli- |

ance Act, and by the highest court of “Alabama in

Camp v. Atlantic Coast Line R. Co., 36 Sd. 24 f331

. (1948) with respect to grease on an engine footboard.

The highest court of Missouri also does not believe

these federal acts apply to a transient condition on an.

engine. Banta v. Union Pacific R. Co., 242 S.W.

94 34 (1951), involving ice on the ladder of a loco-

motive. ve

Prior to the Lilly case, numerous courts were of thie

view that only mechanical or structural defects vio-

lated these federal acts.

Reeves v. Chicago, St. P.,.M. & O. Ry. Ce.

179. N.W. 689 (Minn., 1920)—eoal om steps

of engine tender; |

Riley v. Wabash Ry. Co., 44 S.W. 2d 136 (Mo..

1931—clinker hook on top of engine tender:

fs # . =

pin TEES on ta. + oe

uaa on taht me. 7

O81. Lie

Zachritz Y. St. Louis, S.F. Ry., 81, S.W. 2d

608 (Mo., 1935), cert. den. 996 U.S. 584—

_ smooth, oily grab iron on engine ;

Tobin v. Detroit, T. & I: R. Co., 18 N.E. 2d

739 (Ohio, 1938)—frost on running board ;

Chicago, RI. & P. Ry. Co. Vv. Bensoh, 185 N.E.

244 (Ill, 1933), cert. den. 290 U.S. 636—

' foreign wire on grab iron;

Slater VeChicago, St. P.. Me & O. Ry. Co., 178

N.W. 813 (Minn., 1920).

Basically, the ‘issue involved in this phase of the,

ease at bar is whether a railroad employee should be >

left tozhis remedy under the law, of negligence as ‘it

has been developed under: the Federal Employers’

Liability Act, or whether he should alsg, be given the

advantage of the absolute liability imposed by fed-

eral statute; whether:a railroad employer isto be

held an insurer ‘of the safety. of his employees on

engines even as to conditions over which it has no |

control, such as the weather, or whether it is to be .

held an insurer only as to mechanical and ‘structural

defects, which it has at least a reasonable opportunity .

to control by ‘advance planning, ‘inspection, . and

design; whether or not Congress ever intended to im-

‘ pose penalty provisions of $250.00 for each viola-

tion provided for in 45 U.S.C. §34 to situations of

this sort. . — 3 :

Wuererore, it is respectfully submitted that this

petition for a writ of certiorari should be granted.

Rosert M..PEFT, ,

Attorney for Petitioner.

ee. —

“a0

APPENDIX

Statutes Involved

Section 1 of the Federal Employers’ Liability. Act

of 1908, as amended, 45 U.S.C. § 91, reads in part : as

follows:

“Every common earrier by railroad . . . shall

be liable in damages to any person suffering in-

jury while he is employed by such qfrrier . . -

‘resulting. in whole or in part from the negli-

gence .. . of such carrier . 4

Section 2 of the Federal ‘Boiler Inspection Act, as .

amended, 45 U.S.C. $23, reads in ea as follows:

“it shall ‘Se urlawful for any “carrier to use

or permit to be used on its line any locomotive

unless said locomotive, its: boiler, tender, and all

parts and appurtenances thereof are in proper

condition aid safe to operate in the service to ©

which the same are put, that the same, may fe |

‘employed in the active service of such carrier.

without unnecessary peril to life or limb, . o

Section 4 of. the Federal Safety Appliance Act, .

49 U. S.C. § 4, reads as follows: : ; 4

“Until otherwise order ed by the Interstate ~

Commeree Commission, it shall be unlawful for

any railroad company to use any ear in inter- |

state commerce that is not provided with secure

grab irons or Nandholds. in the ends and sides ’

>» . —»

- 4 . °

r ; @

‘ ae

of each car for greater‘security to men fi cou-

‘pling and uncoupling cars.”’

‘Section y of the Federal Boiler Inspection Act, as

-amended, 45 ,U.S.C. § 34, reads in -part as follows:

“Any common carrier violating the provisions

of sections 22-34 of this title relating to locomg-

- tives, their boilers, tenders, and.so forth, or any

_ pule or regulation made under such provisions

or any lawful order of any inspector shali be .

liable to a penalty of .$250 for each and every

99 ‘

such violation, . . .’’¢ ‘

APPENDIX

App.1

Opinion Court of Appeals

UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

No. 98—October Term, 1960.

tArgued December 7, 1960

Decided February 21961.)

Nill

Docket No. 26222 Petipa

Jerry J. CALABRITTO,

Plaintiff-A ppellee,

—V,.-—

Ture New York, New Haven AND HARTFORD

RaAILRoAD COMPANY,

| Defendant-Appelant.

— * if 4

Before:

CLARK, WATERMAN and FRIENDLY,

| Circuit Judges.

‘Appeal from the United States District Court for

the Eastern District of New York, Walter Bruch- |

hausen, Judge. iy

The New York, New Haven and Hartford Rail-

road Company appeals from a verdict and judgment

in favor of Jerry J. Calabritto for $25,000 and costs

in his action for damages. for personal injuries.

Affirmed. . i on,

App. 2

O pinion Court of Appeals

RoseERT M.. Peet, New York City (Edmund

J. Moore, New York City, on the brief),

for defendant-appellant.

WruaM Paci ALLEN, New York City,

for plaintiff-appellee. Le

Crank, Circuit Judge:

Plaintiff, suing under the Federal Employers’ Lia-

bility Act, 45 U.S.C. §§51-60, and the Boiler Inspec-

tion Act, 45 U.S.C. §23, recovered a verdict and judg- ~

ment for $25,000 and costs for the injuries he sustained

in the course of his work for defendant as a yard

brakeman when he slipped and fell on sand and oil lo- .

eated on the platform on one of defendant's switching

engines. Under the eourt’s charge the jury was

‘directed to find for the plaintiff if the defendant ‘had

been negligent or if it had failed to keep its locomo-

tives in the safe condition required by the Boiler Iv-

spection Act. Defendant now appeals on the grounds

' that there was insufficient evidence to support 4

finding of negligence under the FELA and that the

FBIA does not: impose liability for dangerous ¢olr

ditions created by the temporary presence of foreign

matter on its locomotives. - 3 ,

We conclude that there was sufficient evidence to

justify submission of the case to the jury on the jssue

_- of negligence. By his own testimony the yard col-

ductor, on discovering plaintiff lying unconscious On -

the engine platform, noticed that sand and oil were

present on the frout end of the deck. Plaintiff te-ti-

fied that he saw sand in the area, and the fireman

testified that he saw sand there in making his routine

ees

. —

& ns oaks te So e

6 the 65 EAE EEF SHR BOURKE BALES! Riaboy

App. 3

\ Opinion Court of Appeals

check of the engine prior to the accident. On this

record the jury could find that the railroad, through

its employees, either knew or should have known that

a dangerously slippery condition existed in the area

where plaintiff would pass in the course of his duties.

Unless there is a complete absence of probative facts

to support the conclusion reached, the jury verdict .

must stand.’ Korte v- New York, N. HM. & H.R. Co.,

2 Cir., 191 F. 2d 86, 88, certiorari denied New York,

N.H. & H.R. Co. v. Korte, 342 U.S. 868; Schilling v.

Delaware & H. R. Corp.,°2 Cir., 114 F. 2d 69, 71. °The

sustained efforts of the Supreme Court majority to

preserve the integrity of the jury system, over vigor-

3 ous dissent that the time taken with these cases was

+ not well spent, show that this verdict is, not to be up-

; set. See eg., Rogers v. Missouri Pac. R. Co., 352 U.S.

500, 524, 559; Gibson v. Thompson, 355 U.S. 18.

Defendant's second contention is that the FBIA, 45

U.S.C. §23, imposes liability only for mechanical or

structural defects, and not for dangerous conditions

caused by the’ temporary presence of foreign matter.

But the statute itself contains no such limitation, and

instead requires all locomotives and their parts and

appurtenances to be *‘in proper condition and safe to

operate * * * without unnecessary peril to life or

limb.” Furthermore, the Supreme Court expressly

rejécted such a narrow reading of §23 in Lilly v. Grand

Trunk Western R. Co., 317 U.S. 481, 487-488.!

PE le ES SB BEERS. OH

Mrs 3 one eae ep ee ot ates

r% PRLS ;

1‘*Rrom various cases denying recovery under the Act. re-

spondent attempts to extract a veneral rule that the Act covers

only, defects in construction or mechanical operation and affords

no protection against the presence of dangerous objects or, foreign

matter. But there is no warrant in the language of the Act for

construing it'so narrowly, or for denying the Commission power

eer App..4.

Opinion Court of Appeals

In the Lilly ease the plaintiff had suffered injuries —

ina fall from the top of a locomotive tender which .

‘had become icy in violation of a rule of the Interstaté

Commerce Commission. Sustaining a jury: verdict for

plaintiff the Supreme Court said: “The use ‘of a

tender, upon whose top an employee must go in the

course of his duties, which is ‘covered with ice seems to,

us to involve ‘unnecessary peril to life or lim)b’—

enough’ so as to permit a jury to find that the Boiler

Inspection Act has been violated.”? 317 U.S. 481,

486. So the use-of. an engine whose surface has been

made slippery by sand and oil may similarly be found

by a jury to involve- ‘unnecessary peril to life or

limb’* in violation’ of the FBIA. |

Defendant contends that the Lilly case authorizes

recovery for nonstructural or nonmechanical defects

only where the dangerous condition results from a

violation of an ICC rule. In Lilly the Court, after

' rejecting the argument that §23 did not extend to such

defects, referred to certain of the éarly cases denying

liability on which the defendant here also relies,” and

stated that ‘‘{w]Jhatever else may be said about the

-eases relied upon by respondent, they are sufficiently

distinguishable in that they either did not involve’ or

did not consider Rule 153 or any comparable regula-

tion.”? Id. at 488. But the Court also stated. that the

to remedy shortcomings, other than purely mechanical defects.

which may make operation unsafe. The Act without limitation

speaks of equipment ‘in proper condition and ‘safe to operate

other than mechanical imperfections can plainly render equipment

unsafe ‘to operate Without unnecessary peril to life or limb.

2 Ford v. New York, N. H. & H. R. Co., 2 Cir., 54 F. Dd 342.

certiorari denied 285 U.S. 549 (grease on locomotive grab iret.

Reeves v. Chicago, St. P.. M. & O. Ry. Co., 147-Minn. 114, 1"

NW. 689 (coal on engine steps) ; Riley v. Wapash Ry., gos Mo

~ 910, 44.8. W. 2d 146 ‘clinker’ hook on top of engine tender”

App. 5

Opinion Court of Appeals

jury could have found a violation of §23 in the ab-

sence of such a rule. Id. at 486, 489. The require-

ment of safe equipment is set by the statute, not by

the rule While the Commission has the power to

give more definite content to this standard in specific

instances by rules, the failure of the Commission so to

dict does not relieve a carrier of its obligation to meet

the statutory requirement of safe equipment as it may

-be reasonably interpreted by a jury. If the Commis-

sion had enacted a rule requiring engine platforms

to be kept clear of. slippery substances, clearly the

jury could have concluded that an engine platform

‘made slippery by sand and oil was in an unsafe con-

dition within the meaning of $23. The absence of such.

4 rule, which would only be declaratory of common

sense, can make no difference to the jury’s right to.

reach such a conclusion. It would be indeed an ano-

maly to require enforcement of a Congressional man-

date for safe railroad equipment to depend upon the

action or nonaction. of an administrative agency.

We find no persuasive authority since the Lilly case

to support the narrow construction of §23, for which

defendant contends. Defendant relies on Raudenbush

y. Baltimore &'O.R. Co., 3 Cir., 160 F. 2d. 363, where

the Third Cireuit, distinguishing Lilly as relying on a

Commission rule, held that the requirement of ‘‘secure

sill steps” in 45 U.S.C. §11 referred only to mechanical

3 See Bolan v. Lehigh Valley R. Co., 2 Cir., 167 F.2d 934. 936;

O'Brien v. Chicago & N. W. Ru., 329 Ill. App. 382, 68 N. -E.

2d 638, 646-648.

4See Delevie v. Reading Co. 3 Cir. 176° F. 2d 496, 497;

Baltimore & O. R. Co-v. Groeger, 6 Cir.. 888 F. 321, 324, reversed

on other grounds 266 U. S. 521; Richter & Forer, Federal Em-

ployers’ Liability Act, 12 F.R.D. 13, 47.

App. 6

Opinion Court of Appecls

and structural defects, and was not applicable where

an employee fell on newly fallen snow. But the ap-

plicability of §23, which had been ruled out of the

ease by the district court, was not considered on aj

peal. Furthermore, in a later opinion by the Third

Cireuit in Terek v. Conemaugh & Black Lick R. Co...

3 Cir., 231 F. 2d 564, 567, where plaintiff alleged hut

failed to prove that he fell on a slippery foreign sub-

stance, the court accepted ‘without dispute plaintiff's ~

éontention that ‘‘the defendant railroad would be re

sponsible [under §23] for injury caused by a foreign .

substance on the floor of its locomotive regardless of

fault.” In that case, as

in Delevie v. Reading Co.,

Cir., 288 F. 321, interrogatories were submitted to the

jury inquiring whether

a slippery foreign substance

had made footing unsafe—a factor suggesting that

trial courts in the Third Circuit consider such sul-

stances as creating liability under §23. Defendant

also relies on Camp v- Atlantic Coast Line B. Co., 251

Ala. 184, 36 So. 2d 331, which refused to find liability

under §23 where. there

was doubt that the fall was

eaused by grease as alleged and where the grease may

well have come from plaintiff’s own shoes. Even that

‘ease, however, recognized that the Act would ‘be Vio-,

lated if a locomotive were made unsafe ‘because of

the presence of dangero|

251 Ala. 184, 36 So. 2d 3

We think. the sounder

holding that dangerous

is objects of foreign matter.”

31, 335. |

view is represented by cases

conditions caused by foreign |

eubstances give rise to liability under 623. In Mur-

hart vy. Southern Pac. Co., 136 Cal. App. 2d 486, 288 P.

94 999, liability under $23 was imposed on the author

ity of Lilly for a locomotive ladaer made greasy bY

oil. In Zumwalt ‘v. Gardner, 8 Cir., 160 F, 2d 2

App.7

Opinion Court of A ppeals &

304, the jury was permitted to find for the plaintiff if

it coneluded that dirt was present in the equipment —

controlling the brakes. In Atlantic Coast Line R.

Co. x. Sweat, 5 Cir., 183 F. 2d 27, §23 was violated

when a piece of waste in the water tank caused a boiler

explosion.” In Tisneros v. thicago & N.W. Ry., 7 Cir.

197 F. 2d 466, certiorari denied 344 U.S. 885, the trial

court. concluded that an’ icy condition of steps and

grab irons could be *‘an unnecessary peril to life or

linib” under §23, but the court of appeals reversed :

on another ground without ruling on this issue. , |

“It is‘clear that a permanently slippery surface

wtuld constitute unsafe equipment under: 45 U.S.C.

(23. Bolan v. Leliigh Valley R. Co., 2 Cir., 167 F. 2d

- 164. For the reasons stated, we do not think the

statute authorizes a different result simply because

the dangerous condition is created by the presence of

grease and oil.

Judgment affirmed.

Concurring Opinions Court of Appeals

Waterman, Circuit Judge ( concurring) :

I coneur in the result and jom my colleagues in af-

firming the judgment. In the light of Lilly v. Grand

Trunk Western R. Co. 317 U.S. 481, 487-88 (1948),

the trial eourt’s charge to the jury with reference to

plaintiff’s claim of defendant’s liability te him under

the Boiler Inspection Act. 45 U.S.C. 925 was not er-

_roneous. Uuitil that decision is clarified a trial court

is justified in charging the jury that the presence of

App. 8

Concurring Opinions Court of Appeals

any unstable foreign substane on the exterior of a

locomotive, irrespective of how the substance came

‘to be there, conclusively establishes that,the railroad,

as when a defective boiler explodes, has negligently

violated its duty ‘to its employees of providing them

with safe places in, which to work. Rs

Like Judge Friendly, I arrive at this result with

great reluctance, and if I did not consider ourselves

bound by the language in Lilly v. Grand Trunk West-

ern’R. Co., supra, I would reverse and remand for a

new trial. : : :

Frrenpiy, Circuit Judge (concurring) *

The language of the Boiler Inspection Act, 36 Stat.

913, §2 (1911), 49 U.S.C. §23, does ‘not suggest to me

a Congressional purpose to impose on railroads al

‘absolute duty to keep the surfaces of locomotives and

teriders as free from foreign matter at all times as an

operating room before surgery. If the Act does this.

I see no way of limiting the requirement to such sub-

‘stances as oil and grease; it must extend also to sul-

stances as unavoidable in railroad operation as snow

and ice. Such a egnstruction means that railroads

face an inevitable conflict between the duty thus im-

posed, carrying the sanction of a $250 penalty for

‘each and every such, violation,’’ 49 U.S.C. $34, a

well as of liability, to employees, and tlieir duty to

render reasonable service to passengers and shippers:

if the New Haven chose to regard the former as pare

mount, there would, I fear, be*yiany oceasions during

‘ the New England winter when we would be . bereft

of the presence of our colleagues from Connecticut

and Vermont. Neither does anything in the legislative

0 ae

2 _ App.9 i . a >

‘Concurring Opinions Court of Appeals

history of the Act afford the slightest basis for such

a construction; indeed, it points rather in the op-

posite direction.! If I were free to exercise My own

judgment, I should therefore wholly agree. with the

‘interpretation given by this Court in Ford v. New

York, New Haven & Hartford R. Co., 54 F. 2d 342

(2 Cir. 1931), where we affirmed the dismissal of a

complaint based on the theory that the mere presence

of a foreign substance violated the Safety Appliance

and Boiler Inspeetion Acts. , | me

Against this we n®w have Lilly y; Grand Trunk

“Western R. Co., 317 U.S. 481, 487-88 (1943). That

opinion seems to me to shift rather uneasily between

the extreme position urged by the plaintiff and em-

1The initial debate on the floor of the House indicated that

the legislators ‘were primarily eoneerned with boiler explosions.

Representative Mann, chairman of the House Conrnitteeon Inter-.

state and Foreign Commerce, which reported the bill, said ‘‘It-

is the belief .of all people concerned, both the railroads and the

employees, that the passage of this bill will materially result in

the lessening of boiler-explpsions.’’ 46 Cong. Rec. 2071 (1911).

Representative Robinson spoke of accidents caused by ‘‘defective -

boilers,” id. at 2072, and Representative Peters of explosions,

steam pressure, and the need to inspect boilers from the inside,

ul. at 2074. i

The broadening of the Act in 1915 was recommended by the

Senate Committee on Interstate Commerce in a one-page -report, °

Ss. Rep., 63rd Cong., 3d Sess., No. 1068, which said only:

“This measure provides for the inspection of the entire

_locomotive. Experience has shown that this is necessary and

desirable for the proper safeguarding of the lives of those

who travel and: of those engaged. ip the operation of loco-

motives.”’ r : ;

The House Report on the 1924 amendment, 68th Cong.. Ist Sess.,

No. 490, reprinted a letter from the Interstate Commerce Cots

mission which spoke 4n: passing of accidents ‘‘ resulting from the

failure of some part of appliance of the locomotive tender.”’

P. 2% The Senate Report, No: 740. simply reprinted the hlouse

report with approval. : 2

App. 10

Concurring Opinions Court of Appeals

bodied in the judge's instruction here, and a narrower

holding based on- Interstate Commerce Commission

Rule 153. If that decision were our Own, I would

- limit it to-the latter ground, see Urie v. Thompson,

. 337 U.S. 163, 191 (1949), believing that any incongru-

* ity in having the standard of liability differ accord:

ing as a practice with respect to locomotives and tend-

ers was or was not required by a rule of the Interstate

Commerce Commission was less undesirable than hav-

ing the standard differ as between the locomotive and

tender on the one hand and rolling stock covered by

the Safety Appliance Act on the other, see Rauden-

bush v. Baltimoré & Ohio R. Co., 160 F. 2d 363.(3 Cir.

1947), or as between railroad power plants arid those

of competitive carriers by land and air who are sul-

ject to a liability to their employees that is absolute

~~” but limited. However, when the precedent is a de-

‘ eision of the Supreme Court, our handling must be

-‘more literal ; despite my own belief that the result goes

_ beyond any purpose signified by Congress, I think the

interpretive scale comes down slightly.on the side that

the Lilly opinion went all the way Judge Clark ‘says.

I concur for affirmance solely .on that ground; for if

the charge with respect to the Boiler. Inspection Act

was in error, a new trial would be required despite the

correctness of the instrfiction and the adequacy of the —

evidenee under the Federal Employers Liability -\:t.

+ United New York and New Jersey Sandy Hook Pilots

wiss’n y. Halecki, 358 U.S. 613, 619 (1959).

(—

App.

| Judgment ae ies

UNITED STATES COURT OF APPEALS

For THE SECOND Cmevrt

At a Stated Term of the U nited States ( ‘ourt

- of Appeals, in and for the Second Circuit,

held at the United States ¢ ‘ourthouse in the

City of New York, on the twenty-first day

of February one thousand nine hundred

and sixty-one.

“Present: Hox. CHARLES E. CLARK, -

How. Sterry R. WATERMAN,

‘How. Henry J. FRIENDLY, Cirent Judges.

- A

JERRY J. CALABRITTO,

Plaintiff: Appellee.

Tur New York, New Haven anp Hartrorp

RaILroaD COMPANY,

Defendant- Appellant

Appeal from the Unite .d States District Court for.

- the Eastern Bitriet of New York.

This cause came on to be heard on the transcript —

of revord from the United States District Court for *

App. 12

Judgment

* the Eastern District of New York, and was argued

by counsel.

ON CONSIDERATION WHEREOF, it is now hereby or-

dered, adjudged, and decreed that the judgment ot

said District Court be and it‘hereby: is affirmed.

A. DANIEL Frsano.

Clerk

Endorsed : |

United States Court of Apper', Second Circuit

Filed February 21, 1961 |

A. DANIEL Frsaro, Clerk

App. 13 _

+ Stipulation ‘and Order Staying Issuance of Mandate

i UNITED’ STATES COURT OF ‘APPEALS

‘For THE SEcoND CIRCUIT

Docket No. 26222

JERRY J. CALABRITTO,

} Plaintiff-Appellee,

—against—

THE New York, New Haven AND. HARTFORD

» RarLroap CopPary, 2

Def endant-Appellant.

It IS HEREBY STIPULATED AND AGREED, by and

h-tween the- attorneys for the respective parties

hereto, that the ‘issuance of the mandate of. the

United States Court of Appeals for the Second Cir-

cuit in the above-entitled action be stayed for a

period of thirty days from March 8, 1961 and -that

App. 14

Stipulation and Order: Staying Issuance of Mandate

an order so staying the issuance of the mandate be

entered without further notice.’

Dated: New York, N.Y. , ‘

March 1, 1961.

WituaM Pavi ALLEN

Attorney for Plaintiff-Appelle

Epavunp J. Moore

Attorney for Defendant-Apnellant

So ORDERED: -

Dated: New York, N.Y.

March 3. 1961.

Henry FRIENDLY .

United States Circuit Judge

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