# Petition for Writ of Certiorari — New York, New Haven & Hartford Railroad v. Calabritto (No. 873) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0944%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text * 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 2 . *h 4 - a PAGE ° : billy v. Grand Trunk WwW estern R. Co.,-3¥% U. Ss. 2 “S05 (TIMES) ...- . ’ ° . - es . - . . . - ? “s ‘ ‘ . al ~ Sd . . . ‘ & ‘ a IN THE Supreme Court of the Buited Bates so OCTOBER TERM, 1960 No. i. es Tur New York, New Haven anp HARTFORD RaILroaD COMPANY, i Petitioner, .—int— ~ JERRY J. CALABRITTO, : ! Respondent. i — 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. ) > LE 3 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, - ar 4 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 A) 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 6 >. 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 ee een ik OLE PRADA EP LILI S ELLIS LT ARE ae e Se | 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 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. ° a = t $e 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 . ° . #8 r ; @ ‘ ae 2 of each car for greater‘security to men fi cou- ‘pling and uncoupling cars.”’ 12 ‘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, . . .’’¢ ‘ © rn e 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 Ln _ Jerry J. CALABRITTO, Plaintiff-A ppellee, —V,.-— Ture New York, New Haven AND HARTFORD RaAILRoAD COMPANY, | Defendant-Appelant. — * if 4 : 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 we 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). (— \ 3 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 A> ss 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. La > 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 ie 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0944%3A2. Public record. Not legal advice.