Petition for Rehearing — Elgin, Joliet & Eastern Railway Co. v. Borrero (No. 324)

IN THE

Supreme Court of the United States

Ocrobper Terme A.D. 1061

No. 324

ELGIN, JOLIET AND EASTERN RAILWAY COMPANY,

@ corporation,

Petitioner,

ve.

RAPHAL BORRERO and JOSE GONZALES GOMEZ,

Respondents.

PETITION FOR REHEARING OF ORDER

DENYING CERTIORARI.

HARLAN L. HWACKBERT.

POS S. LaSalle Street,

Chicago 4, [linois,

Attorney for Petitioner,

Chicago Law Printing Corp., 189 W. Madison, Chicago 2, FRankiin 26521

In THE

Supreme Court of the United States

OctoBer Term, A.D. 1961

( No. 32 4

ELGIN, JOLIET AND EASTERN RAILWAY COMPANY,

@ corporation,

Petitioner,

vs.

RAPHAL BORRERO and JOSE GONZALES GOMEZ,

Respondents.

PETITION FOR REHEARING OF ORDER

DENYING CERTIORARI.

Your petitioner, Elgin, Joliet and Eastern Railway Com-

pany, respectfully petitions for a rehearing of the order

of October 23, 1961, denving certiorari in the above en-

titled cause.

Petitioner limits its motion for reconsideration of the

denial of its petition for writ of certiorari to the second

question presented by the petition—the error in setting up

—l

the straw man of assumption of risk to becloud the basic

issue of comparative negligence. Upon that issue we re-

spectfully direct the attention of this Court to the decision

of the Supreme Court of Utah in Siciliane v. Denver &

R. G. W. Co., 364 P. 2d 413, published in the advance

sheet of September 29, 1961, after the petition and oppos-

ing brief in this case had been filed.

In Siciliano as here, it appears that ‘‘defendant urges

that the court erred in giving an objected to instruction

that plaintiff did not assume any risk in his employment”’

(364 P. 2d at 414). The Supreme Court of Utah held (364

P. 2d at 414):

‘*As to the contention that it was prejudicial error

to instruct the jury as to assumption of risk, we agree.

No issue was raised by defendant’s pleading on that

score, and there was no evidence that remotely could

have suggested that assuming the risk would have pre-

vented recovery here. Nor would have been proper an

instruction on assumption of risk had this been a case

divorced from the F.E.L.A. (which specifically elimi-

nates such defense), since the evidence showed conclu-

sively that Siciliano had no knowledge of any hazard,

such knowledge being a necessary factor before as-

sumption of risk can be urged as a defense.”’

The court referred to its earlier decisions in Bruner v.

McCarthy, 105 Utah 399, 142 P. 2d 649, and Moore v. Den-

ver € R.G. W. R. Co., 4 Utah 2d 255, 292 P. 2d 849, 852, dis-

approving such an instruction, and to Ellis v. Union Pacific

R. Co., 148 Neb. 515, 27 N.W. 2d 921, and continued (364

P. 2d at 415):

‘The coup that seems to have led to the disapproval

of the instruction in F.E.L.A. cases, was executed by

Mr. Justice Frankfurter in his concurrence in Tuller

v. Atlantic Coast Line R. Co., (318 U.S. 54, 63 S. Ct.

444, 453. 87 L. Ed. 610) wh2n he said:

~ —

= oe

‘“Assumption of risk’? as a defense where

there is negligence has been written out of

-the act. But ‘‘assumption of risk’’, in the sense

that the employer is not liable for those risks

which it could not avoid in the observance of its

duty of care, has not been written out of the law.

Because of its ambiguity the phrase ‘‘assumption

of risk’’ is a hazardous legal tool. As a means of

instructing a jury, it is bound to create confusion.

It should therefore de discarded.’

“‘This language was referred to and applied in

Texas & Pac. Ry. Co. v. Buckles. (5 Cir., 232 F. 2d

257)

‘*In order to serve as a guide for instructions on as-

sumption of risk in F.E.L.A. cases, we state that in the

usual case it is prejudicial error to instruct that under

the act the employee does not assume the risks of his

employment occasioned by the employer’s negligence,

unless, as Mr. Justice McDonough pointed out in the

Moore case, such issue was raised by the pleadings and

evidence,—and we might add unless raised by the

pleadings or evidence. There may be a case where the

issue was not pleaded but where the evidence so em-

phasizes the fact that the employee recklessly and

foolishly took on a known and dangerous hazard as

to ‘ereate improper inferences’ that should be ‘dis-

pelled’ by a cautionary instruction, as reflected in the

language of Mr. Justice McDonongh.”’

The decision of the Appellate Court of Illinois here is

squarely in conflict with these decisions of the Supreme

Courts of Utah and Nebraska, and with the very recent

decision of the Court of Appeals for the Third Cireuit in

Seaboldt v. Pennsylvania R. Co, (C. A. 3), 290 F. 24 296,

cited at p. 17 of the petition. The ‘‘reasoning’’ by which

the court below sought to sustain the challenged instruction

is squarely in conflict with the considered statement of the

sgniings

Court of Appeals for the Second Cireuit in Murray v. New

York, N. H. d H. R. Co. (C. A. 2), 255 F. 2d 42, at 44, that:

_ “The trial judge was apparently of the view that the

rule tended only to show assumption of risk by the

plaintiff, a defense which does not exist under the

Act, 45 U.S.C.A. § 54. To some extent the doctrines

of assumption of risk and contributory negligence

overlap. See Pacheco v. New York, N. H. & H. R. Co.,

2 Cir., 1926, 15 F. 2d 467. The former ‘refers to the

situation in, which the plaintiff, with full knowledge

of the risk, enters into some relation with the defend-

ant involving danger to himself through the defend-

ant’s conduct.’ Prosser on Torts 377 (1941). Contribu-

tory negligence, on the other hand, consists of ‘conduct

on the part of the plaintiff which falls below the stand-

ard to which he should conform for his own protection

* * ©) Restatement of Torts § 463. As we lave indicat-

ed above, we think that violation of Rule 745 by the

plaintiff was some evidence from which the jury might

- determine that plaintiff was not in the exercise of due

care in being aboard the engine. The defendant may

not be denied its partial defense of contributory neglt-

gence merely because the same evidence would be per-

tinent to prove assumption of risk.’’ (Emphasis ours)

See also Potter v. Brittan (C. A. 3), 286 F. 2d 621.

The conflict between the decisions of state and federal

courts sitting in Illinois and the decisions above referred

to in other states and other circuits will not die down by be-

ing ignored. The instruction was challenged in three cases

within eight months. Railroad defendants are keenly con-

scious of the fact that this instruction — this ‘‘hazardous

legal tool,’’ to quote Mr. Justice Frankfurter—is used to

cut down their ‘‘partial defense of contributory negli-

gence,’’ as Judge Waterman puts it. Sooner or later this

Court must face the question necessarily presented by this

appeal: Does an instruction on assumption of risk have

any place at all in an F.E.L.A. case. This Court has held

Ve,

— Se

tnat ‘‘cases tried under the Federal Act [are] to he han-

j dled as though no doctrine of assumption of risk had ever

existed’? (Tiller, supra, p. 64). The jury, in its relatively

simple duty ‘‘to weigh the fault of the injured employee

and compare it with the negligence of tiie employer, and, in

the light of the comparison, do justice to all concerned”

(Tiller, supra, p. 65) should not be confused by the diffi-

cult concept of ‘‘assumption of risk.’’

The case at bai necessarily and squarely presents for

decision the conflict which must inevitably be decided by

this Court. We respectfully submit that the continuing con-

flict, presented by the three decisions in a space of eight

months, should be resolved now.

Respectfully submitted,

HARLAN L. HACKBERT,

‘Attorney for Petitioner.

CERTIFICATE OF COUNSEL.

- hereby certify that the foregoing petition for rehearing

is presented in good faith and not for delay and is restrict-

ed to grounds specified in Rule 58 of the Rules of this

_ Court.

HARLAN L. HACKBERT,

Counsel for Petitioner.