# Petition for Writ of Certiorari — Pyle v. Tennessee Central Railway Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1941
- **Citation:** 314 U.S. 633

## Text

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SUPREME COURT OF THE UNITED pants © fate

OCTOBER TERM, 1940

13
ai
No.fMae, <2
MRS. NANNIE PYLE,
Petitioner,

vs.

TENNESSEE CENTRAL RAILWAY COMPANY.

PETITION FOR WRIT OF CERTIORARI TO THE |
SUPREME COURT OF THE STATE OF TENNESSEE
AND BRIEF IN SUPPORT THEREOF.

:
INDEX
Page 4
Pili Cer en. bos SG 1 4
Mine’ OF GON. Se sos. es 1 .
ROS I i oye Sas th ayia Q cans 6 e
Reasons for ailowance of this writ............. 7 .
Pemet THE OIA one os eh Se os ow 7
I I oe ee 5G ans Pe wecme i) :
NU MN sc ca «Sin Sid ad e's Wales a RS 9 ‘
a od icy oi 0 os Ses 9h hes 9 :
A. Bpatatory provisions ................: i) t
DD. See OE SUORE. ea 9 &
Cr. Seer ae WE I Gs ooh ae a cv oy) Hy
D. Rulings of Court Below............... 10 .
Kk. Cases sustaining Jurisdiction.......... 13 .
Baenmiatieh OF O0TONE oy oe ee ne 14 E
inte Gr Te WERE. Se ae 16 :
PI ae no ce Viv Se eae 16 |
Conflict with other authorities................ 23
(a) Conflict with holdings of U. S. Supreme Pa
SE sc oe eee ge ag 23 :

(b) Conflict with other Federal Courts. .... 27

(c) Conflict with Courts of other States. ... 28

(d) Conflict with other decisions in Ten-
ice ik es Ue ee 40
NN a ew te eae ae oul ae 41

TABLE OF Cases CITED.

Alexander v. Great Northern R. Co., 51 Mont. 565,

L. R. A. 1918 EB. 862, 154 Pac. 914................ 33
Arizona Eastern R. R. Co. v. Head (1924), 26 Ariz.

127, 222 Pace. 1041; Motion to modify judgment

denied in 1924, 26 Ariz. 259, 224 Pace. 1057........ 37
Armburg v. Boston & M. R. Co., 276 Mass. 418, 177

BT Oley Ge Ak Bs Be Ge rere as 38
Atchison T. S. P. R. Co. v. Pitts, 44 Okla. 604, 145

WU: SA yds errs pei aah slay aae a eos oko 35
Bolchv.C. M. & St. P. Railroad, 90 Wash. 47, 155 Pac.

BI 2G oe 0 he MR ea pth eee ue Saks 29
Bottom v. St. L. @ S. F. R. Co., 179 Fed. 318......... 19
Bravis v. Chicago & St. P. R. Co., 133 C. C. A. 228,

Ee NE IS oo is oh RN aa A a eS 24

—4221

SPR SHAG E NA PA 5 BEAN IE ST RTI IY RE

il INDEX

Charleston & W.C. R. Co. v. Anchors (1912), 10 Ga.
Apo. 398, 73 8. B. S51... ......-..- =. +--+ ----
C. & O. Ry. Co. v. DeAtley, 241 U. S. 310, 60 L. Ed.
1006, 26.6. ©. B. OG4.............--. +--+.
C. R.1. & P. Ry. Co. v. Devine, 239 U. 8. 52, 60 L. Ed.
ce | 8st 8 See er ee
Defenbaugh v. Union P. R. Co., 102 Kan. 569, 171 Pace.
re rN Si na weed eaees avast
Dickinson v. Industrial Board (1917), 280 Ill. 342, 117
a oS a, ae WA Said wus 4
Dickinson, Receiver, v. Stiles, 246 U.S. 631, 62 L. Ed.
§ 3 Og See ee eee

1 W.&L.R.Co.v. Yurkonis, 238 U. S. 444, 59 L. Ed.
eS Bl een ee eee
Dupois v. La. R. & Nav. Co. (1924), 155 La. 923, 99
MR Se irs oe a hk San wena a ger
Erie R. R. Co. v. Collins, 253 U. S. 77, 64 L. Ed. 790. .
Erie R. R. Co. v. Welch, 242 U. S. 303, 61 L. Ed. 319,
ee Te TB se ra wn aw oe ey
Erie R. R. Co. v. Winfield, 244 U.S. 170, 61 L. Ed. 1057
Fentermacher v. C. R. I. & P. R. Co., 309 Mo. 475, 274
S. W. 718; Certiorari denied in 1925, 269 U. S. 576,
70 L. Ed. 420, 45S.C.R 102........,....-...--.
Foley v. Hines (1920), 119 No. 425, 111 Atl. 715 (Writ
of certiorari in 1921, 256 U. S. 690, 65 L. Ed. 1173,
PO Beare yee eee rere eee eee
Froelich v. Northern P. R. Co., N. Da., 173 N. W. 822
Giovio v. N. Y. C. R. Co., 175 App. Div. 230, 162 N. Y.
Supp. 1026; Affirmed in 1918, 223 N. Y. 653, 119

% 5 ae ee A ene oe
Grow v. Oregon Short Line R. Co., 44 Utah 160, 133
Pac. 398, Ann. Cas. 1915 B. 481...............--.
Harrington v. C. B. € Q. R. Co., 180 S. W. 448... ...
Hines v. Baecgtel, Md.,113 Atl. 126................
Hudson & M. R. Co. v. Lerio, 152 C. C. A. 641, 239
I ES NG ee ON ities alli KN ire wn 40 428
1. C. R. Co. v. Cousins, 241 U. S. 641, 60 L. Ed. 1216,
36 S. C. R. 446, reversing 126 Minn. 172, 148 N. V.
i ee aoe ae hee Renak ANE AS

ERTS DSR ee ARM, Rl BRT EERE Sm ES

Page

INDEX

I. C. R. Co. v. Behrens, 235 U.S. 473, 34 S. Ct. 646,
i i ee a io is eek ea ees kes
I. C. R. Co. v. Rogers, 136 C. C. A. 530, 221 Fed. 52. .
Jackson v. C. M. & St. P. R. Co., 210 Fed. 495.......
Karras v. Chicago & N. W. R. Co., 165 Wis. 578,
in &. A. 2007 BGT, 168 N. W. See. .............
Kihler v. Davis, 1923, 109 Neb. 837, 192 N. W. 732...
Kiser v. Metropolitan St. R. Co., 188 Mo. 10,175 8S. W.
RRL SEE ae AB eon Rc tg RAT ES eg Ora a
Klomp v. C. M. & St. P. R. Co., 210 Ill. App. 375... ..
Lamphere v. Oregon R. & Nav. Co., 47 L. R. A. (N.S.)
RRS pats Py ae RP ARES oe Og el oe
L.@ N.R.R.Co.v. Carter, 195 Ala. 382, 70 So. 65... .
Louisville, Etc., R. Co. v. Parker, 165 Ky. 658, 177
8 sy Sh ae ae ene
Malandrine v. Sou. N. Y. Power & R. Corp., 190 App.
SaeT, Fey Oe Ts hn PMD. TO. ss ce ie ee
M. K. & T. R. Co. v. Pace, Tex. Civ. App. 184, S. We
a DRA SIRI ERAS eRe So coat NST cearpe aegeaNih
M.K.¢éT.R.Co.v. Watson, Tex. Civ. App. 195, S. W.
1177

ey I pak erreer an ey ea pode a ee tS
UC crc ed eee es en soa os
Munn. & St. L. R. R. Co. v. Winters, 242 U. S. 353, 37
RDA eam ay Sy eaet aoe 1 rR alee ana
Miller v. K.C. & W. R. Co., 160 Mo. 371, 128 S. W. 336
Mitchell v. Louisville, Etc., R. Co., 194 Tl. App. 77. .
Mitchell v. Sou. R. Co., 23 Ga. App. 195, 98 S. E. 184
Morrison v. Chicago M. & St. P. R. R. Co., 103 Wash.
I I er a ae oa gg 4
North Carolina Railroad Co. v. Zachary, 232 U. S.
248, 58 L. Ed. 591, 34S. C. RK. 305................
N.Y.C.R. Co. v. White, 243 U. S. 188, 37 S. C. T. 247,
WO A Tks Be gee eee ene ee.
Penn. R. v. Knox, 218 Fed. 748, 134 C. C. A. 426
Prince v. N.C. & St. L. Ry., 152 Tenn. 189..........
Raymond v. C. M. & St. P. R. Co., 243 U.S. 43, 61 L.
Ed. 583, 37 S. C. R. 268

Gitinewmasee sear

Fo ac uk eA

Are

iv INDEX
Page
Ruck v. Chicago M. & St. P. R. Co., 153 Wis. 158, 140
Wee Me ee srr re ale 32
Salmon v. Sou. R. R., 133 Tenn. 223, 180 S. W. 165. . 25
Seaboard Air Line Ry. v. Horton, 233 U. 8. 492, 58
re € & | ois eer eee 13
Shanley v. Phila., Etc., R. Co., 221 Fed. 1012....... 28
Southern R. R. v. Maxwell, 117 Miss. 62, 77 So. 905. . 34
Sou. R. Co. v. Pitchford, 165 C. C. A. 230, 253 Fed. 736 28
Smith v. Interurban R. Co., 171 N. W.134.......... 35
State, Ex rel. Mulcahy, v. Hostetter, 139 S. W. (2d)
939; dismissing certiorari Mulcahy v. Terminal R.
Ass’n of St. Lowis, 123 S. W. (2d) 235.......... 39
Sullivan v. Chicago M. & St. P. R. Co., 163 Wis. 583,
Ws EE x es cote cee ey ce 33
Tennessee R. R. v. Chitwood, 163 Tenn. 303......... 13, 35
Tilliv. P. é R. R. Co., 263 Penn. 558, 107 Atl. 330... 24

T. St. L. d W. R. R. Co. v. Salvin, 236 U. 8. 454, 59
L. Ed. 671, 35 S. C. R. 306, reversing Ohio St. 536 13
Union Pacific R. R. Co. v. Huxoll, 245 U. 8. 535, 62 L.

Ms a le oe 13
Vaught v. Railway Co., 148 Tenn. 379.............. 12
Watts v. Ohio Valley Electric Co. (W. Va.), 88 S. E.

OE trea eas eee Ee tes os 38
Williams v. R. R. Co., 154 Tenn. 224................ 41
Yazoo & Miss. Valley R. R. Co. v. Houston, 114 Miss.

wee he, , BANARAS ita ine nese 31

Statutes Crrep.
Code (Tenn.), Sections 6851-6901................. 4,9
Code (Tenn.), Section 6856 Sub. (a)............... 4,7
Federal Employers’ Liability Act, 45 U.S. C. A. 51-99 17
Missouri Statutes Ann., 3299-3376, pp. 8229-8294... 39
U.S. Code, Title 28, Section 344(b)................ 6, 8,9
U. 8. Code, Title 45, Section 1.................:... 7

2
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SPP TERAP BR LANES BREIL ROL EI LAE PED EES INET RHETT NI ROS ee :

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1940

No. 1027

MRS. NANNIE PYLE,

Petitioner,
vs.

TENNESSEE CENTRAL RAILWAY COMPANY.

PETITION FOR WRIT OF CERTIORARI.

To the Honorable the Supreme Court of the United States:

The petition of Mrs. Nannie Pyle, respectfully shows to
this Honorable Court, as follows:

A. Statement of the Case.

1. That on the 26th day of February 1938, the husband
of petitioner, Pearson Pyle, was an employee of the re-
spondent Tennessee Central Railway Company, and had
been for about 19 years (R. 16).

The said Pearson Pyle held the position of yard foreman
for the respondent Tennessee Central Railway Company
at Emory Gap, Tennessee, and had held this position for
about 14 years (R. 12).

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SANA PRR ARAN HOE RIN TRS

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SRAM REL EE LOHMANN Wy,

2

When asked what were the duties of her husband as yard
foreman, petitioner replied; ‘‘Well he looked after the en-
gines and kept the yards clean, called out the train crews,
notified the crews when their train was called to go out and
was clerk in the office making out reports and time slips’’
(R. 12). When asked, on cross-examination if her deceased
husband worked on engines and ¢ars, petitioner answered;
‘‘no, he wasn’t supposed to work on anything he was over-
seer to see it was done.’’ In answer to another question
as to whether he was just a foreman or overseer to see that
the work was done, she answered; ‘‘Yes, the work that
was to be done and he informed them when the engines were
ready to go out.’’ In answer to the next question being
asked if it was part of Pyles duties to call the train crews,
petitioner answered; ‘‘yes, he notified the crews when they
were to go out’? (R. 16). Petitioner’s husband, Pearson
Pyle, worked at the station at Emory Gap, Tennessee, all
of the time during the entire 19 years that he worked for the
respondent Railway Company (R. 16).

2. While engaged in the line of his duty in calling a crew
to go out on train No. 81, on February 26th, 1938, Pearson
Pyle, the husband of petitioner, was struck by a fast pas-
senger train on the tracks of the C. N. O. & T. P. Railroad
and was instantly or almost instantly killed (R. 12, 18,
19, 20).

Train No. 81, crew for which Pearson Pyle was calling at
the time he was killed, was a freight train operated by re-
spondent Railway Company and was made up at Emory
Gap, Tennessee, and its destination was Nashville, Tennes-
see (R. 17, 21, 22, 23).

Train No. 81, as it was finally made up and went out from
Emory Gap on the date that Pearson Pyle was killed, seems
to have consisted of 13 cars, seven of which were loaded
with Intra-state shipments or were empty and billed be-

3

tween Intra-state points. The other six cars were loaded
with Interstate shipments but the handling of these cars
is not shown. That is it is not shown whether they were
kept in continuous transit or had been sidetracked for some
length of time. That it is not shown when any of said six
cars were received by the Tennessee Central Company at
its Eastern Terminus at Emory Gap, Tennessee. Neither
is it shown whether these cars moved under a through way
bill or whether they had been billed from point of origin
to some intermediate point and had been or were due to be
rebilled to point of destination (R. 23).

Pearson Pyle had nothing to do with the making up of
train No. 81, on the day that he was killed, in the yards at
Emory Gap. The train was made up by the yard crew with
the yard engine under the direction of F. G. Gardner, the
agent and yard master, at Emory Gap. The only thing
Pyle had to do in connection with train No. 81 was to call
or notify the crew of the time fixed by Gardner for the
train to go out (R. 24, 26, 27).

R. C. Harsh, the conductor on train No. 81 was not on
duty and had done nothing toward the taking of the train
out at the time that Pyle was killed (R. 24).

E. E. Smith, the Engineer for train No. 81 on that date
who lived in Harriman, Tennessee, some two miles from
Emory Gap, had been called by Pyle by telephone about
ten minutes before Pyle was killed and did not arrive at
Emory Gap until about 35 minutes after Pyle was killed
and did not enter upon his duties until after that. It was
the duty of the engineer after he arrived at Emory Gap to
take the engine from the siding where it was stored and
couple it up to the train (R. 21, 22, 24).

The fireman, that was to go out on No. 81 had not been
notified. Pyle was on his way to call him at the time he was
killed,

SSAA EINE EIT ORY

cane

4

(3) The Tennessee Central Railway Company and the
C. N. O. & T. P. Railway Company. Both use the same
depot at Emory Gap, and have a common Agent and some
other employees in common. The general direction of the
track of both railroads at this point is North and South.
The Depot stands entirely on the East side of all the tracks.
Next to the depot come in order; the C. N. O. & T. P. North
bound main, then the South bound main, then the inter-
change tract, then some side tracts of the Tennessee Cen-
tral and then the Tennessee Central main line. Pyle was
killed by a fast passenger train, No. 6, on the North bound
main line of the C, N. O. & T. P., about opposite the freight
room of the depot, while crossing the tracks to call the
engineer for No. 81 (R. 17, 18, 19, 27).

(4) Your petitioner Nannie Pyle, as widow, of the de-
ceased Pearson Pyle, and for the benefit of herself and
her minor son Lucian Pyle, filed her petition in the Circuit
Court of Roane County, Tennessee, to recover compensa-
tion from the defendant Tennessee Central Railway Com-
pany, on the 27th day of January, 1939, under the provision
of the Workmen’s Compensation Law of Tennessee (Code
of Tennessee 1932 Title 14, Chapter 43, Sections 6851 to
6901, inclusive, and the amendments thereto) (R. 1-4).

Section 6856 of the Code reads in part as follows:

‘This law shall not apply to whom.—This chapter
shall not apply to:

‘*(a) Any common carrier doing an interstate busi-
ness while engaged in interstate commerce. * * *”

The defendant Tennessee Central Railway Company
filed its answer on May the 9th, 1939. The only pertinent
part of the same being:

‘It admits that it is a corporation engaged in doing

business as a common carrier by railroad, and that it
has in its employ more than five persons, but it is

5

engaged as a common carrier doing an interstate busi-
ness, and consequently said Workmen’s Compensation
Act (Section 6851 et seq. Code 1932) has no applica-
tion to defendant’’ (R. 4-5).

This case was heard before the Honorable Pat Quinn,
Judge, without the intervention of a jury, on September
29th, 1939 (R. 11). And was taken under advisement by
the Court and held until December 9th, 1939 (R. 6). At
which time a decree was entered in favor of your petitioner.

The said decree contained among other things the fol-
lowing:

‘And the statements of the respective parties made
in open court, stating and agreeing that this is a com-
pensation proceeding brought by Nannie Pyle, and the
widow of Pearson Pyle, to recover compensation, for
the benefit of herself and her minor son Lucian Pyle,
under the Workmen’s Compensation Law of Tennes-
see, and that there is only disputed question in this
case to-wit:

‘Was the deceased husband, Pearson Pyle, and the
defendant Railroad Company, in the duties that the
deceased was performing at the time of the accident
and his death, engaged in interstate commerce, or in
work so closely associated with it as to be a part of
it, so as to make the exclusion in said statute apply”’

(R. 6).

The defendant Railway Company filed its motion for a
new trial on December the 9th, 1939, which was carried
under advisement by the Court until January 22, 1940,
when the same was overruled and the said Railway Com-
pany prayed and perfected its appeal to the Supreme Court
of Tennessee (R. 8-11, 28).

The case was heard by the Supreme Court of Tennessee,
Eastern Division, and on November the 23rd, 1940, the

2c

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:
&

6

Court handed down an opinion reversing and dismissing the
case and decree was entered thereon on said date (R. 29, 33).

Your petitioner filed a petition to rehear which was over-
ruled and denied on February the 7th, 1941 (R. 33).

A certified copy of the entire record of said cause in the
Supreme Court of Tennessee is hereby furnished, attached
to and made a part of this application and marked Exhibit
A in compliance with the Rule of this Honorable Court.

Your petitioner is advised and believes that the said
judgment of the Supreme Court of Tennessee is erroneous
and that this Honorable Court should require said case to
be certified to it for review and determination in conformity
with the provisions of Title 28, Section 344 (Judicial
Code, Section 237), of the United States Code. The Su-
preme Court of Tennessee, being the highest court of the
State of Tennessee in which a decision could be had.

B. Questions Presented.

It is the contention of petitioner that Pearson Pyle was
the Agent and Servant of the Tennessee Central Railway
Company at the time he was killed and that the character
of work in which he was engaged at the time determines
the character of work or business in which his employer,
The Tennessee Railway Company, was engaged at the time.

It is the further contention of petitioner that the said
Pearson Pyle, at the time he was killed, was not engaged
in interstate commerce, as the same defined by Title 45,
Chapter 2, Section 51, of the United States Code with
amendments thereto and which was in effect at the date
of his death, February 26, 1938, and that the character of
work or business of the employer being determined by the
character of work in which the employee was engaged at
the time, that, therefore, the said defendant, Tennessee
Central Company, was not engaged in interstate commerce
at the time of the accident in which Pyle was killed.

Tat YON, AEE rn al Lae

SRE Se a CE Na as

7

That, therefore, subsection (a) of Section 6856, of the
Code of Tennessee, has no application in this case.

That the proper construction of said subsection (a) of
said Section 6856 of the Code of Tennessee calls for a con-
struction by the Court of Section 51, Chapter 2, Title 45,
of the United States Code as to what is interstate com-
merce, or as to when a carrier is engaged in interstate
commerce,

That the Supreme Court of the State of Tennessee has
erroneously construed said Section, by its opinion in this
ease, wherein it held that both Pearson Pyle and the de-
fendant Tennessee Central Railway Company were en-
gaged in interstate commerce at the time of the accident
in which Pearson Pyle was killed.

C. Reasons Relied On for Allowance of This Writ.

(1) The decision of said Supreme Court of Tennessee
misconstrues Section 51, Chapter 2, Title 28, of the United
States Code and is in conflict with the holdings of this
Court construing said statute.

(2) The decision of said Supreme Court of Tennessee
grants the defendant Railway Company a privilege or im-
munity under said Section 51, Title 45, of the United States
Code and under subsection (a) of Section 6856, of the Code
of Tennessee to which it is not entitled under the decisions
of this Court construing said United States Statutes and
other similar State Statutes.

(3) The decision of the said Supreme Court of Tennessee
is in conflict with the great weight of authority of this and
other courts construing said statutes and other similar
statutes.

Wherefore, your petitioner respectfully prays that a
writ of certiorari may be issued ont of and under the seal

sid) lie ond

1 CRT pe Wie

yey tegres

“
F

ECM EY TIT

8

of this Court directed to the Supreme Court of Tennessee,
Eastern Division, commanding said court to certify and
send to this Court on a day certain to be designated a full
and complete transcript of the record and all proceedings
of the said Supreme Court of Tennessee, in said cause,
entitled Tennessee Central Railway Company v. Mrs.
Nannie Pyle, No. 2. From Roane County, to the end that
the said cause may be reviewed and determined by this
Court as provided by Section 237 of the Judicial Code
(Title 28, Paragraph 344, Subsection (b) U. S. Code), or
that your petitioner may have such other or further relief
or remedy in the premises as this Court may deem appro-
priate and in conformity with the provisions of the Judi-
cial Code (U. S. Code Title 28) and that said judgment of
said Supreme Court of Tennessee in said case and every
part thereof may be reversed by this Honorable Court.

Mrs. Nannie Py ez,
By J. W. Srons,
Attorney for Petitioner.
Mar R. Srrickxuin,
Attorney for Petitioner.

,
SECTS SOFT NPNER SENT MERI RIES IN ere Ri ae Ras et tna RR

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_0598%3A1. Public record. Not legal advice.