Petition for Writ of Certiorari — Reeley v. Pennsylvania Railroad

IN THE

Supreme Court of the United —y

OcToBER TERM, 1940.

mee

No. € 3,

ELVA MAE REELEY, Window, AND ON BEHALF OF THE THREE

INFANT CHILDREN OF THE LATE GEORGE A.

REELEY, DECEASED,

Petitioner,

against

THE PENNSYLVANIA RAILROAD COMPANY,

EMPLOYER AND SELF-INSURER.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND, AND

BRIEF IN SUPPORT THEREOF.

ISAAC LOBE STRAUS,

Munsey Building,

Baltimore, Maryland,

Counsel for Petitioner.

AVRUM K. RIFMAN,

Munsey Building,

Baltimore, Maryland,

Of Counsel.

; { aed Uffice - Supreme Court, U.S,

POD ONC oP nad SOOO RN BELT WAT od -~

tbh nains Rd thaeh BRt ADP Ritd Min SK

ee ed

The Daily Record Co. Print, Baltimore.

as ae

SUBJECT INDEX.

PAGE

Petition for writ of certiorari..........ccssscceccccccevecsccessccns 1

A. Statement of the matter involved...........c ec ee ee cereceees 1

Sarees SLRMOMIOME isos ky.0 tee ess Sonecbaecarescaeeses 11

C. The questions presented... ....cccccccccvccccsscncccsccccces 12

D. Reasons relied on for the allowance of the writ............ . 14

Brief in support of Petition for Writ of Certiorari..............0006. 19 4

F APUONMIOW, oc crcle had cche a edu esas eebanece ees ccs tenn ke 19

By SURI GA cas bcnacs Kase cobs seetvaescimeebsseleeests 19

PVE OMCAGIGNe Ce CRP CANO.) oc diec cab ckaviene ces Oe aeberew eee cise 20

TV. Specification Of CLOG. 6i cis ce kee tees cecetioveccnvesnes 20

Wy, PPO. oan Sree ie pele teks Head VRS ew RES SRC Spy eC eberee eae 23

BUMMALY (OF AYROMORE .iii5 ic cQeck ce thcsaiecte ccs teas sewers 23 z

ON ia aie.k sides Huse CRS ORY OST EEN CIN ORS RAS HCO e Ee CREE 28 %

| oft Scere ore eed Care te eee Pee ewe rea eerie eo 34 &

sas Chior ci wen cee an da saaelas does eens 39 ‘

SIN iis ore Kode names ne dens enek ioe tean ce aes 433 &

af RR eae may set Flat te OE NEY Pate on oR EP 50 é

CONCHISION .crcccncccrscrcvscccseccensstessevesecccresnce 57 4

if

TABLE OF CASES CITED ,

Balto. &€ Ohio C. T. R. Co. vy. Industrial Commission, 366 Ill. 223, 8 g|

Pee CS Oi oi ackats ot oes aceareswewar ative 805.0) Rkcnas cis ous 34 =i

Balto, & Ohio S. W. R. Co. v. Burtch, 2683 U.S. 540... ee eee ee 43

Baughman y. Grand Trunk Western R. Co., 271 Mich, 244, 259 N. W.

ev *_2e**f © « @f © eee eee eee eee eee eee eee eee eee eee eee eee eee eer eee eee §2

Berry Vv. St. Louis € 8S. F. Ry. Co., 324 Mo. 775, 26 S. W. (2) 988, cert.

GOR; Dk Oy By Faas ce oe ERKS Cd RRR CMa ves ooo dCe Re eenURKe 43

Boston & M, R. hd V. APMOiie, BEE UB. Boke kek as ceagiectawicervenas 48

Chicago, B. & Q. R. R. Co. vy. Harrington, 241 U. S. 177..........4. 31, 56

Chicago & BE. I. R. Co. v. Industrial Commission, 284 U. S. 296....... 34, 56

Chicago Junction Ry. Co. v. Industrial Board, 277 Ml. 512, 115 N. E.

OIE 6 isos 5 SARE AREER CRS EERE DOSS EN MUR RAEN CESS aes swans 52

Chicago € NY. W. Ry. Co. v. Botle, 284 U. 8. 74... ..cccecccevcoece 33, 55, 56

Chicago, R. I. € P. Ry. Co. v. Devine, 239 vU. . Di clus CORES en wes 12

Colangelo vy. Pittsburgh & L. E. R. Co., 836 Pa. 490, 9 A. (2) 391....... 35

Coe v. Missouri Pac. R. Co., 332 Mo. 991, 6i S. W. (2) 962.............. 46

Delaware L. € W. R. Co. v. Peek, 225 F. 261 (C0. C. An)... cece cence 50

Serer seni emer er

ii }

2 PaGE

Pere ee Mee. Ge NE SEs Me BEG So Aiba aes vabaved daa cds onesies 56

ee: Ee, ae i Ss I I BP ns 6-80 obo ew aes bowen weeees 56

Erte Retiroed Ca. v. Welel, 282 U. B. S06... cies cc cescewecuieass 32, 41

Flack v. Delaware, L. &€ W. Co., 45 F. (2) 683 (C. C. A. 2). . &

Geraghty v. Lehigh Valley R. Co., 70 F. (2) 300 (Cc. Cc. ‘a 2), Wn F. 3

Supe. Sts (D.C. N. ¥.), SB BR. €2) FSS CC. C1, ZB) vcccccccccccces 50

Gidley v. Chicago Short Line Ry. Co., 346 Ill, 122, 178 N. E. 399, cert.

A SM Rs nian Sheen ce det CIN sonatas as sew ba eee eee; 35

Grigsby vy. Southern Ruy. Co., 3 F. (2) 988 (C. C. A. 6), cert. den. 268

TOM co ea eee Lei de brircin eked sd hie DR Sd Deda ae A RIES i456 45

CITES D.C Ce i, Os ho an ob oS a hiv ows nee cn Os eewaes ae 36, 40

Heffner v. Pennsylvania R. Co., 81 F. (2) 28 (C. C. A. 2)........085, 52

Howard vy. Mobile & O. R. Co., 335 Mo. 295, 73 S. W. (2) 272.......... 48 ;

Titinots Cent. BR. BR. Co. v. Behrens, 233 U. 8. 478... cece cccccccccecs 31, 41

Illinois Cent. R. R. Co. v. Peery, 242 U. 8. - ee reer e Pete 33, 41, 48

Industrial Accident Comm. v. Davis, 259 U.S. 182...... 00. c eee 12, 34, 49 |

Jarvis v. Chicago, B. & Q. R. Co., 327 Mo. ~ 37 8S . (2) 602, cert.

RE EE RETA Seer Lae ye oN rt ae ne re are eR 2

Kinzell v. Chicago, M. € St. P. Ry. Co., 250 U. 8. 180... .cccccsecces 12

Konsoute AL Pe ee Railroad Co,, 287 Pa. 302, 135 A. 209, cert. )

i Er le cock at hb Adie Od eee Sb bee hak CoA eks 34

Kraemer vy. Chicago € \. W. Ry. Co., 148 Minn. 310, 181 N. W. 847, 186

es AS a daecu wre eee aa nie sae Wal nee pel bcnie AA batch ee oe oka e 52

LaLone vy, St. Louis M. B. T. Ry. Co., 316 Mo, 835, 293 S. W. 379, cert.

Or We a ahaa ra ainda wis Sain ws bab aie a hws S35. A ke Saas cues bs 42

Lavigne vy. Chicago, M. & St. P. R. Co,, 287 Ml. App. 258, 4 N. E. (2) j

785, and cases cited, cert. den. 302 U. S. 688.............ccceee 52

Lawrie v. Atlantic City R. Co., 3 N. J. Mise. 267, 127 A. 818.......... 50

Lehigh Valley Railroad Co. v. Barlow, 244 U. 8S. 188.......... 0.0065 41, 53

Louisville € N. R. Co. vy. Strange’s Admx., 156 Ky. 489, 161 8. W. 239.. 50 )

Louisville € Nashville R. R. Co. v. Parker, 242 U. 8. 18..........00055 42

Mayer vy. Union R. Co., 256 Pa. 474, 100 A. 967, cert. den. 243 U. 8S. 656. 50

Mayor y. Central Vermont Ry. Co., 26 F. (2) 905, aff. 26 F. (2) 907 j

CC. Se Ie Te Fh in oss a cde ck ce wicivecvescs 49

McBain y. Northern Pac, Ry. Co., 52 Mont. 578, 160 P. 654............ 52

MeCoy v. Southern Pac. Co., 29 Cal. A. 16, 83 P. (2) 970, cert. den. 307

i Oe a 6A ow Rae wr tbentes slab Aas belo Re DOs oS Roe Kale oes 6 35

McDermott v. Chicago € N. W. Ry. Co., 124 Neb. 727, 248 N. W. 59. keane 50 }

Mease vy. Reading Co., 126 Pa. Super. 436, 191 A. 402, cert. den. 392 F

Ds nd I Wa este 0 hile aka RR NETS ba Blake DAG AA bia 6b kw © poe Aseibd's b0 68S 6

Metion Vv. Weber, 115 Oh. St. O03, 152 N. B. 758.0... ccc ccvccscccccese 43

Middleton vy. Southern Pac. Co., 61 F. (2) 929 (C. C. A. 5), wut, den.

Se We CNA wah Gamdaancu cet wk ces bat a eed shee iss ce eweacd oan

Minneapolis & St. Louis R. R. Co. vy. Winters, 242 U. S. 358.......... 34, 538

Mississippi Cent. R. Co, vy. Knight, 138 Miss. 621, 103 So. 377, cert. den.

BE eS i I SING hae Se cians aa uals Aivoisiniee SS BASE oie SOS SEK pwaleaicws aie

Missouri Pac. R. Co. vy. Industrial Commission, 348 Il. 355. 180. N. E. “

SNR ina a acai eilive: paral alo mb lea a Hi vib aia os AGES ESTED Ste i

Mitchell v. Louisville € N. R. Co.. 305 Ill. A. 635, 27 N. E. (2) 861.... 35

Murray v. Pittsburgh C., C. & St. L. R. Co., 263 Pa. 398, 107 Atl. 21.... 46

New York Cent. d H. R. R. Co. v. Carr, 238 U. S. 260...... jeeaewses 48

iii

PAGE

New York Cent, R. Co. v. Marcone, 281 U. 8. B45... cc cece eee eee eee 42

New York Cent. R. R. Co. v. White, 243 U. S. 188.......6..- 0. eee eee ee 34

New York, N. H. € H.R. Co, v, Bezue, 284 U.S. AVG. ec eee eee ee 338, 48

North Carolina R. R. Co, v. Zachary, 232 U.S. 24S. cece eee eee 33, 36, 41

Osborne Vv. Gray, 241 U. S. 16..... cece cece cece scree ese cesen voces 5 ee

Painter v. Balto, & O. R, Co., (Pa. 140), 13 A. (2) 396, cert. den.

het BNE TIO a assole s siarens seekers v0.0 8.3/6 « Ae Le, SAO IER ee 46

Palermo vy. Erie R. Co., 173 N. Y. Supp. 456, 185 App. POI GOGs wc ta cas 43

Pedersen v. Delaware, Lack, &€ West. R. R. Co., 229 U.S. ee 34, 438

Pennsylvania Co, vy. Donat, 239 U.S. SER EN rer Semana rat er Car ae Ear 43,

Pennsylvania Railroad Co. vy. Stallings, 165 Md. 615, 170 A. BGG vv oiecs.a erent 35

Philadelphia € R, Ry. Co, v. Berman, 295 FP. G58 (CLC. ALB) eee eee 43

Phillips v. Union Terminal Ry. Co., 828 Mo, 240, 40 S. W. (2) 1046,

COPE: GIGI, ek TS 5 GODS arin 0 04) .0:5'5.0 win e'snje oii sie wieenin ws 684 see Be be 36

Pope vy, Utah-Idaho Cent. R. Co., 54 F. (2) 575 (S45. By BBY ven ose 46

Raymond vy. Chicago, M. & St. P. Ry. Co., YRS i Oe Te ree 3

Red Cross Line vy. Atlantic Fruit Co,, 264 U.S. 109... cece ee eee 36

Reif v. Schumacker, et al., (Cal, 1940), 102 PL (2) 815... e ee eee eee eee 30

Rice v. Baltimore & O. R. Co., 42 F. (2) 387 (0. CO. ALG) eee ee eee eee 46

Richmond & Danville R. R. Co. v. Powers, 145 U.S. AB. cece eee 40

Roberson vy. St. Louis M. B. T. Ry. Co., 201 Mo, App. 672, 213.8. W. 878. 45

Rogers v. Canadian Nat. Ry. Co., 246 Mich, 399, 224 N. W. 429, cert.

TE A 8 ie. Ho ee rer aren ea eee we Se kee eee ee 52

Russell y. St. Louis, S. F. Ry. Co., 386 Mo, 845, 81S. W. (2) 621.... 34

St. Louis & S. F. Ry. Co. v. Fraser, 75 Okla, 265, 183 P. 4T8......665- 45

Schauffele v. Director General, 276 F. 115 (C. ©, A. 3), cert. den, 257

ie 1 ge Pe ele ee yr ee eee Eee ee ee ee eee ee oe . +

Seaboard Air Line Ry. v. Koennecke, 239 U.S. 852... 0... ce eee ee 43

Seaboard Air Line Ry. v. Padgett, 236 U.S. GO8. 0.0... cee cee eee ee 12

Second Employers’ Liability Cases, 223 U.S. Lecce cece cece eee eens 30, 45

Seyle y. Charleston Terminal Co., 106 8, Car, 215, 90 8. E. 1016. 109

S. Gar, 0B) OG BR. BR, TB isan ie sree eee e inh vecesecesene ene’ 4:

Shanks v. Delaware, Lack. & West. R. R. Co., 239 U.S. 556.......-. 33, 56

Niegel vy. Missouri-K.-T. R. Co,, 342 Mo. 180, 119 8. W. (2) 376, cert.

eR a 7 ge, SE a ee eer eT re wree ted Tae a ete ay 46

Smith v. Interurban Ry. Co., 186 Towa 1045, 171 N. W. 134, cert. den.

EE ae OTe ae eee ee eee ey fon TT ee eee re . 80

Smith v. Salt Lake & U, R. R. Corp. (Utah, 1940), 105 P. (2) 358....0 45

Southern Pac. Co. v. Industrial Acci. Comim., 251 U.S. 259.......-4. 12, 34

Southern Pac. Co. vy. Middleton, 54 F. (2) 888 (C. GC. AL 5) eee ee eee 45

Southern Pacific Co. v. Schuyler, 227 U.S. GOL... cee cee eens 36

Southern Railway Co. v. Lloyd, 239 U. S. 496... 0... cee eee eens 41

Npencer v. Chicago & N. W. Ry. Co., 336 Ill. 560, 168 N. E. 686, cert.

eh ee Oe AUN soe pv sowic ssa besvi sae ncbhescte tesa sees Sebwwe 46

Teras & Pacific Ry. Co. vy. Cor, W445 UL S. SOB. ec eee eee 36

Tipton vy. Atchison, T, &€ S. F. Ry. Co., 298 U.S. Wal... eee eee 36

Toledo, St. Louis & West. R. R. Co. v. Slavin, 236 U.S, 404....-6065. 12

United States v. Lowden, 308 U.S. 225..... 0... eee eee Fae ice hee Batons i 47

Van Brimmer v. Teras & P. Ry. Co., 190 F. 394 (D, C. Tex.) ........ 46

Voelker y. Delaware, L. & West. R. Co., 31 F. Supp. 887 (D.C. N.Y)... 86

iv .

Western € Atlantic R. R. vy. Hughes, 278 U. S. 4

Wichita Falls & Southern R. R. Co. vy. Holbrook, 125 Tex. 184, 78 S. W.

C2) Wie COEe Cee. 208 Ue Fe GIG ic iene checks aden secducsscees 38

Wichita Falls & S. R. Co. vy, Lindley, (Tex. 1940), 143 S. W. (2) 428.. 46

Winfree v. Northern Pac. Ry. Co., 227 U. 8. 206. ..cccccccccsesccsccs 46

Wise v. Lehigh Valley R. Co., 43 F. (2) 692 (C. C. A. 2).........0008, 45

STATUTES CITED.

Federal Employers’ Liability Act (U.S. C. Tit. 45, Sec. 51, et seq.). 3.11, 20

OCU Eh a5 sna d calcs <a Sh Re ee RRNRR RE Chu aoa ee eebace 23, 28, 30, 32, 45

Amendment of August 11, 1939 (53 Stat. 1404).................. 46

SUBIR CONS, BECO BOO CD) 5 cad osc Fvnsiek ¥en kdtb as tiepaeepesomes 11,19

Maryland Workmen's Compensation Act (Code of P. G. L. of Md., 1939,

PORN Os hiiinis 7a a0 Cee CLKCES SENSES CSOD ROTOR OR MERU hee 3, 11

EU Es 065. e sa scours Oe oka Coe ke esse MEW ea Rha me bleneee 85

OMIT ED 5 he 0.5 6 pc cicke Reweeac RelacUa ch cahscs us wabeeveuweeees 3

RCUIONIC AD i iivaciat oUeeL ECU EGDEREOR SHR RO ERY SAU CRS BEETS 35

IN THE

Supreme Court of the United States

OcToBER TERM, 1940.

No.

ELVA MAE REELEY, Winow, AND ON BEHALF OF THE THREE

INFANT CHILDREN OF THE LATE GEORGE A.

REELEY, DECEASED,

Petitioner,

against

THE PENNSYLVANIA RAILROAD COMPANY,

EMPLOYER AND SELF-INSURER.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND.

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

The Petitioner, Elva Mae Reeley, widow, and on behalf

of the three infant children of the late George A. Reeley,

deceased, respectfully prays that a writ of certiorari issue

to review the decision of the Court of Appeals of Mary-

land rendered in the above cause on December 18, 1940.

A.

STATEMENT OF THE MATTER INVOLVED.

The Court of Appeals of Maryland, reversing without a

new trial the judgment rendered on a verdict and specific

findings of a jury that a deceased employee was, at the

2

time he received injuries resulting in his death, engaged

in intrastate work to the extent that it was clearly sepa-

rable and distinguishable from any interstate transporta-

tion in which he had previously been engaged, and that

such interstate transportation had terminated prior to )

his being injured, held that the trial Court erred in allow-

ing the jury to pass on the questions of fact involved in the

determination of the status of the deceased employee at

the time of his injuries, and that the trial Court should

have instructed the jury that, as a matter of law, the un-

contradicted evidence in the case showed that the deceased

Was engaged in interstate commerce at the time of his

injuries and death. That there was an interstate move-

a ment of ore by train from Harrisburg, Pennsylvania, to the

¥ Canton ore piers in Baltimore, Maryland, and that de-

: ceased worked as brakeman on said train previous to the

time of his injuries and death, is, as the trial Court plainly

found and stated (R. 141), not disputed. As the jury

found, however, and, we submit, as the evidence clearly

shows, the interstate character of the work in which de-

ceased had previously been engaged, and all of his inter-

state duties, had for all purposes ceased and terminated at

the Canton yards prior to the time of his injuries, and at

said time he was not engaged in interstate transportation

3 or in work so closely related to it as to be practically a part

: of it but was, pursuant to detailed and specific orders of his

employer, engaged in intrastate work clearly separable and

distinguishable from his previous activities. Moreover,

the instrumentalities, namely, the engine and tender, upon

which deceased was in attendance had been, at the time

3 of his injuries, so far as the evidence shows, completely

F withdrawn and retired from interstate transportation, and

; Respondent did not attempt to show any other, different )

or contemplated future use thereof, although all evidence

on that subject was exclusively within Respondent's

knowledge and power to adduce.

Letiehit evs see

ot as POLE ES

The cause originated when Petitioner, Elva Mae Reeley,

widow of George A. Reeley, deceased, and mother of their }

3

three infant children, all dependents of the deceased,

sought compensation (R. 6, 9) for herself and said infant

dependents pursuant to the provisions of the Maryland

Workmen’s Compensation Act (Code of P. G. L. of Md.,

1939, Article 101) from The Pennsylvania Railroad Com-

pany, Respondent, his employer, for his death resulting

from accidental personal injuries sustained by him arising

out of and in the course of his said employment by Re-

spondent as a brakeman. Respondent, a self-insurer (R.

9) conformably to other provisions of the Maryland Act,

contested the claim and State jurisdiction by invoking, as

exclusively controlling of the rights and liabilities of the

parties and as determinative of the validity of the claim for

compensation, the provisions of the Federal Employers’

Liability Act of 1908 (35 Stat. 65; U. S. C. Tit. 45, Sec. 51,

et seq.); and in furtherance of its defense under the Federal

Act requested that the State Industria! Accident Commis-

sion of Maryland, before which body the matter initially

came on for hearing, decide, as Respondent’s issue (R. 9):

“Whether or not George A. Reeley, deceased employee,

was engaged in interstate commerce at the time of the

alleged injury”. The Commission held that it had no jur-

isdiction because deceased was engaged in interstate com-

merce, and found for Respondent on the issue thus pre-

sented, which was the sole issue decided by it, which re-

sulted in the disallowance of the claim for compensation

(R. 9).

Thereafter, as authorized by Section 70 of said Article

101 of the Maryland Code, Petitioner seasonably filed an

appeal (R. 3) from the decision of the Commission to the

Superior Court of Baltimore City and elected to have the

questions of fact involved in the case submitted for deter-

mination by a jury. Proposed issues of fact of Petitioner

(R. 3-4) and of Respondent (R. 4) were filed and, each op-

posing party having excepted to the other’s proposed

issues, the trial Court ruled (R. 5) that the cause be tried

and submitted to the jury upon two issues of fact, Peti-

3

*

.

tioner’s proposed issues Nos. 3 and 4, namely: “Was the

decedent, George A. Reeley, at the time of the accidental

personal injury resulting in his death, on the 21st day of

November, 1937, engaged in intrastate work to the extent

that it was clearly separable and distinguishable from his

interstate work”; and “Did the employment of George A.

Reeley, decedent, in interstate commerce as such, term-

inate when the cars were ‘cut off’ at the Canton yards on

the 21st day of November, 1937, preceding his accidental

personal injury and death’. The case was tried before

the Court and a jury upon the transcript of testimony

taken before the Commission, additional testimony of wit-

nesses, and exhibits.

‘ Upon the conclusion of the evidence Respondent re-

quested the trial Court to rule and to instruct the jury )

that, as a matter of law, the uncontradicted evidence in the

; case showed that the deceased was engaged in “interstate

i commerce” at the time of his death and the answers to the

ly issues submitted should be in the negative, which request

was by the trial Court refused (R. 146). Respondent

then requested the trial Court to instruct the jury that the

decision of the Commission was prima facie correct and

that, therefore, Petitioner had the burden of proving that

her husband, the deceased, was not engaged in interstate

commerce, which request was by the trial Court granted

(R. 144).

——

4 MIE ro

Ele EAE se CPR

: At the request of Petitioner the trial Court instructed

d the jury (R. 144-146) that if it found from the evidence

: that at the time Reeley sustained the accidental personal

injuries resulting in his death he was engaged in intra-

state work to the extent that it was clearly separable and

distinguishable from his interstate work, then the answer }

of the jury to the first issue submitted to it should be in

the affirmative; further, that if the jury found from the

evidence that the employment of deceased, in interstate

commerce as such, terminated when the sixty-two freight

cars were cut off at the Canton yards on November 21, |

CAME ERS REN BAI NS

5

1937, and thereafter the deceased sustained an accidental

personal injury resulting in his death, and arising out of

and in the course of his employment by Respondent, while

engaged in intrastate work, then the answer of the jury to

the second issue submitted to it should be in the affirma-

tive; and, finally, that while the decision of the Commission

was prima facie correct, yet if the jury was satisfied by a

preponderance of the testimony that deceased sustained

the accidental personal injuries resulting in his death,

which arose out of and in the course and scope of his em-

ployment by Respondent, and that at the time deceased

sustained said injuries he was not engaged in interstate

transportation or in work so closely related to it as to be

practically a part of it, then the answer of the jury to both

issues submitted to it should be in the affirmative.

The verdict of the jury was an affirmative answer to

each of the issues submitted to it, resulting in the reversal

of the decision of the Commission (R. 5). Respondent

moved for a new trial, which was denied, and judgment

was entered for Petitioner (R. 5). Respondent then filed

an appeal to the Court of Appeals of Maryland which, as

stated, reversed without a new trial the findings of the jury

and the judgment thereon of the Superior Court of Balti-

more City, and held that the trial Court committed error in

refusing Respondent’s first or demurrer prayer (R. 146),

which contained the request that the trial Court rule as a

matter of law that deceased had been engaged in “inter-

state commerce” at the time of his death, and held, further,

as a matter of law, that the remedy afforded by the Federal

Employers’ Liability Act was paramount and exclusive

and that the Commission had no jurisdiction of the claim

for compensation.

At the time of his death deceased was forty-five years of

age, was a brakeman in the employ of Respondent (R. 6),

and lived with his wife and infant children in Baltimore,

Maryland. There were no eye witnesses to the accident

causing the injuries to deceased that resulted in his death,

6

but it is clear from all the evidence adduced, and particu-

larly from the nature and extent of his injuries as testi-

fied to by the Coroner (R. 71-74) and as they appear from

the latter’s inquest and verdict (R. 7-8), that deceased was

run over or crushed (R. 73) by an engine in Respondent’s

Highland yards in Baltimore City, sometime shortly after

5:18 P. M. and before 6:30 P. M., on November 21, 1937,

and died almost immediately thereafter. Because of the

lack of eye witnesses the evidence bearing upon the cause

and occurrence of the fatal accident was wholly circum-

stantial, and, for the added reasons that the events and de-

ceased’s activities and movements preceding the happen-

ing of the accident occurred while he was working with

the crew of one of Respondent's freight trains, and that

the accident occurred at an isolated point in Respondent's

Highland yards, no testimony as to the preceding events

or the accident itself, and no testimony of any of Re-

spondent’s activities or those of its instrumentalities in-

volved, was available to Petitioner except that obtainable

from deceased’s fellow workmen and other employees of

Respondent.

On the day of the accident deceased was working as a

brakeman with a freight train crew consisting of a con-

ductor (Hudson), engineman (Lambie), fireman (Mor-

gan) and flagman (Arnold). All but the flagman, who

appeared only at the Coroner's inquest, testified in the

case, the conductor being called as a witness by Respon-

dent, and the engineman and fireman testifying at the re-

quest of Petitioner. The evidence is conflicting as to

whether these men, except for the trip of November 21,

operated regularly as a crew, the conductor testifying (R.

29) that he had been with the crew for a month and that

deceased had worked with him for that length of time, the

engineman testifying (R. 58) that they had no regular

crew, that sometimes deceased worked with him only at

intervals of several weeks, and that they make up a train

crew for each round trip out of Baltimore, and the fireman

7

testifying (R. 80) that he works “extra list” and that the

trip in question was the only one he made with the so-

called crew.

The entire group had, on November 20, the day before

the accident, left Baltimore and gone to Enola, Pennsyl-

vania, which is across the Susquehanna River and about

five miles from Harrisburg, Pennsylvania (R. 10, 31, 32).

At 3:30 A. M. on November 21 the group, which was rest-

ing in a bunk house at Enola (R. 32), was awakened and

orally directed to go to Harrisburg (R. 10). The men pro-

cured, at Enola, engine No. 6733 and tender and a caboose

in which they left Enola at 4:15 A. M. (R. 36, 37) and went

to Harrisburg where the same engine, tender and caboose

were coupled to a train of sixty-three cars of ore (R. 32)

destined for the Canton ore piers in Baltimore, and con-

signed to the Bethlehem Steel Company at Sparrows Point,

Maryland (R. 10, 34). This train was an “extra train” or

an “extra made-up train”, and, as distinguished from a

“booked train”, had no regular schedule and no fixed or

regular times for beginning or terminating its run ( R. 36),

nor did the men in the group have any fixed or regular

shift or time for working on the train (R. 31, 34).

In order to show the origin and destination of the ore

cars, about which there is no dispute, Respondent offered

in evidence a copy of the wheel report (Employer’s Ex-

hibit No. 1, R. 13-18), which shows that the train was an

“extra”; twelve of the sixty-three waybills (Employer’s

Exhibit No. 2, R. 20-28), which establish that the ore cars

were to be delivered by Respondent to the Canton ore

piers and were consigned to the Bethlehem Steel Company

at Sparrows Point, Maryland; photostatic copy of the re-

mainder of the waybills, which Respondent, although re-

quested to do so (R. 58, 97), failed to produce before the

Commission and did not include in the record; the engine-

man’s time sheet (Defendant’s Exhibit C, R. 99-102); and

the conductor’s time sheet (Defendant’s Exhibit D, R. 104-

108). Petitioner requested Respondent at the hearing

8

before the Commission to produce the time cards (R. 79),

which Respondent declined to do until the hearing in the

Superior Court on appeal from the Commission, and which

Respondent did not include in the record.

The train, with deceased acting as front brakeman, left

Harrisburg at 7:20 A. M. on November 21 and, after drop-

ping one ore car which had developed trouble (R. 34, 39,

59), passed, but did not stop at (R. 37, 41, 42), the first

Baltimore station, Bay View yards, at 4:10 (R. 38, 60) or

4:20 P. M. (R. 10, 37) on the same day (R. 10). The first

stop in Baltimore was at approximately 4:35 (R. 60) or

4:45 P. M. (R. 43) in Highland yards, which are stated to be

about a half-mile (R. 10) toa mile (R. 42, 81) beyond Bay

View yards; and the ultimate stop of deceased and his group

in Baltimore, where, pursuant to specific orders, engine No.

6733 and its tender were uncoupled from the ore train (R.

10), was in Canton yards which are a half-mile (R. 10, 44)

beyond Highland yards. The Canton ore piers, to which

the ore train was hauled from Canton yards by a yard

engine under the supervision of a yard crew (R. 11), are

one mile (R. 10) beyond the Canton yards.

When the ore train made its first stop in Highland yards

the conductor already had specific orders (R. 10, 33, 34, 41,

42, 45) which he had received in Harrisburg, and received

further orders from the Highland yardmaster (R. 41, 52,

59, 78, 86, 88), that they were to haul the ore train on No. 1

track (R. 43, 61) only “to the head of the Canton yards to

get our engine loose on account of it being too big to get

down to the ore pier, and the yard engine handled the

train from the yard at Canton to the ore pier” (R. 10, 41,

42, 43, 44, 69). The caboose was cut from the train in

Highland yards and there placed upon a spur track, and

the conductor and flagman remained there (R. 46) with

the caboose while the engineman, fireman and deceased

went on with the train to Canton yards (R. 45), the latter’s

duty being to uncouple the road engine and tender from

the train at Canton yards (R. 10). Upon arriving at Can-

9

ton yards at about 5:15 P. M. (R. 43, 44) the road engine

and tender were uncoupled from the ore train (R. 44, 69)

which was taken completely in hand by the yard engine

and crew and hauled the remaining distance to its destina-

tion at the Canton ore piers (R. 11, 44), while the road

engine and tender were backed in reverse to Highland

yards (R. 44, 45) after having been switched to No. 2 track.

The road engine and tender started the backing movement

from Canton yards on No. 2 track (R. 50, 53, 66), with the

tender in the lead, at approximately 5:18 P. M. (R. 8, 45),

although there is considerable conflict as to the exact

amount of elapsed time, and prior to the start of the back-

ing movement was the last time deceased was ever seen

alive. He was known to have delivered the waybills for

the ore cars to the yardmaster at Canton yards (R. 78, 79),

and was seen to throw a switch in said yards, and then to

climb upon the rear step of the tender and walk across the

end sill to a ladder that leads from the back of the tender

to the brakeman’s cabin or “dog house” in the tender (R.

8, 65, 66, 80, 81). When the engine and tender reached

Highland yards on the return trip they were recoupled to

the caboose (R. 53, 66) and then, still in reverse, with the

tender in the lead (R. 67), continued the return trip, after

being switched on to the south track (R. 48, 66, 81), to the

Bay View yards (R. 87).

There is conflicting testimony as to when deceased was

first missed, the conductor first testifying that they missed

him when the engine and tender backed into Highland

yards from Canton yards (R. 47), and then stating (R. 49,

53) that they missed him when they reached Bay View

yards, and finally denying (R. 55) that deceased had been

missed before arriving back at Bay View yards. The first

report that deceased was missing and inquiry as to his

whereabouts (R. 67) were made after the engine, tender

and caboose came into Bay View yards (R. 49) at about

6:10 P. M. (R. 54), at which time a mark and some hair

and blood were found on the rear or end brake beam of

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10

the tender (R. 53, 68, 84), after which the remaining mem-

bers of the group accompanied by a yardmaster, in

an effort to locate deceased, started to go back with

the engine and tender over the route they had tray.

ersed from Canton yards (R. 49). Reaching High-

land yards on this return trip they brought the engine toa

stop and, while walking ahead, found the body of deceased

between the rails of No. 2 track in said yards (R. 49, 50,

88) at a point estimated from one hundred and seventy

feet (R. 56, 87) to two hundred and fifty feet (R. 56) south

of the place where the caboose had been cut off and placed

on the spur, and about seven or eight car lengths (R. 68)

or four hundred feet (R. 83) from the Highland yard-

master’s station. Deceased’s cap and a cushion from the

brakeman’s cabin were found about forty-five feet south

of his body (R. 72), and fuses and his gloves were found

close by (R. 77).

After the body was found the yardmaster took charge

of the situation and the engine and tender were returned

to Bay View yards at 6:30 P. M. (R. 34, 37, 38, 54) where

the caboose was, pursuant to previous orders, placed on

the cabin track, and the engine and tender, likewise pur-

suant to orders, placed on the storage track (R. 82) at the

ash pit in Orangeville (R. 11, 109), which is approximately

one-quarter of a mile from Bay View yards (R. 54).

At the trial in the Superior Court Respondent’s counsel

read to the jury (R. 93-95) certain of Respondent’s rules

to show the general duties of its employees, and there is

testimony as to said rules (R. 48, 88-90, 92-95, 143) brought

out upon cross-examination of Respondent’s employees in

a fruitless effort of Petitioner to ascertain whether there

was a written rule applicable to the duties of deceased at

the time of his injuries. There also was testimony (R. 88,

89, 91, 92) from which it was attempted to be ascertained

whether Respondent’s crews leave their duties as a unit,

and as to the duties of train and engine crews generally

(R. 140-142), but such evidence as was adduced from all

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