Appendix — Pitcairn v. Wild

Supreme Court brief1941

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Supreme Court of the United States

OCTOBER TERM, 1941

No. 164

NORMAN B. PITCAIRN and FRANK C. NICODEMUS.

JR.. RECEIVERS OF WABASH RAILWAY

COMPANY, a Corporation, Petitioners,

DS.

RICHARD F. WILD, Respondent.

PETITIONERS’ REPLY TO RESPONDENT’S BRIEF IN

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

NAT S. BROWN,

HOMER HALL,

Counsel for Petitioners.

— - — wy

a —

SISSON PRESS, 105 South Ninth Street, St. Louis—CHestnut ses6e

Tisnacienamneneenntineds

SUBJECT INDEX.

As to Point 1, No Linbility tor Not Equipping Car

As to Point 2, Defect Must Be Proved..

As to Point 3, Order of Interstate Commerce Commission. . .

As to Point 4, Negligence of Carrier Must Be Established...

As to Point 5, Conflict Between Circuit Courts of Appeals. .

TABLE OF CASES CITED.

American Propeller & Mtg. Co. y. United States, 300 U.S. 475

Atchison, Topeka & Santa Fe R. Co. v. Scarlett, 300 U.S. 471

Atlantic Coast Line R. Co. y. Burnette, 230 U.S. 199...

Atlantic Coast Line Rk. Co. y. Powe, 2883 UL S. 401.000.000.000.

Chicago, B. & Q. R. Co. y. United States, 220 U.S. 559_. hana

Chicago, Great Western R. Co. vy. Rambo, 298 U.S. 99...

Chicago, M. & St. P. R. Co. v. Coogan, 271 U.S. 472.........

Chicago, R. 1. & P. Ry. Co. v. Brown, 229 U.S. 317..

Didinger v. Penn. R. Co., 39 F-. (2d) 798...

Grand Trunk Western R. Co. y. Holstein, 67 F. (2d) 7s0..

Great Northern R. Co. y. Leonidas, 305 U.S. 1...

Illinois Central R. Co. y. Williams, 242 U.S. 462.........

Jacobs vy. Southern Ry. Co., 241 U. a: : en

Louisville & N. R. Co. vy. Layton, 243 U.S. 617.....

McFeely v. Commissioner, 296 U. S. 102... ....0......

Minneapolis & St. L. R. Co. y. Gotschall, 244 U.S. 66.

Philadelphia & R. R. Co. y. Auchenbach, 16 F. (2d) 530.

Sun Antonio & Arkansas R. Co. vy. Wagner, 241 U.S. 476

Seaboard Air Line R. Co. y. Horton, 233 U.S. 492.

South Chicago Coal & Dock Co. y. Bassett, 309 U.S. 251

Southern R. Co. v. Gray, 241 U. a: -.

Spokane & I. E. R. Co. y. Campbell, 241 U.S. 497... 00.

Spotts v. Baltimore & O. R. Co., 102 F. (2d) 160...) .19, 21, 3:

St. Louis-S. F. Ry. Co. vy. Mills, 271 U. S. 344

St. Louis, I. M. & S. R. Co. y. Taylor, 210 U.S. 281

United States v. Am. Trucking Assn. 310 U.S. 534...

United States y. Carver, 260 U.S. 482..0.0.000.0..........

Wright v. United States, 302 U.S. 588............_. wee eee

time

STATUTES CITED.

Page

Federal Safety Appliance Acts—

MOO ON Rte ea on a Fo ues Race wie ee ee kiaw eee 14, 38, 39, 40, 49

Act of Apr. 14, 1910, Sec. 13, Title 45 U. S. C—

5, 8, 9, 13, 20, 21, 26, 30, 31, 34, 35, 44, 49

Pa ee eee rere ee re rere eee ree 29, 35

Federal Employers’ Liability Act............... 2.00055 32, 33, 36, 37, 41, 46

AUTHORITIES CITED.

Interstate Commerce Commission Order...................00055 23, 25, 28

2 Roberts Federal Liabilities of Carriers, pp. 2010-2012............. 22

, Eien 6 oh ESV AR AES A SRLS BET NOAA TES OIE OE ENA PEEL

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Supreme Court of the United States

OCTOBER TERM, 1941

No. 164

NORMAN B. PITCAIRN and FRANK C NICODEMUS,

JR., RECEIVERS OF WABASH RAILWAY

COMPANY, a Corporation, Petitioners,

VS.

RICHARD F. WILD, Respondent.

PETITIONERS’ REPLY TO RESPONDENT'S BRIEF IN

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

While the brief of the respondent was not filed within

the time required by the Rules of the Court and the pe-

titioners waived any objections they would have had,

they feel that there are some statements, concessions and

contention in respondent’s brief, which may very properly

be called to the attention of the Court by this reply,

which we trust the Court will consider.

ARH SE WME MLR PR ope Se 2 CCAS ONO S BREEN _

The respondent does not make any point that the peti-

tion for the writ was not filed in time, for it was so filed,

or that the decision of the Supreme Court of Missouri

did not become the final decision of the highest court of

the state upon the overruling of the petitioner’s motion

to transfer the cause to the Court en Banc. Therefore

the Rules of the Missouri Supreme Court and the provi-

sions of the Missouri Constitution relating to motions for

rehearing and to transfer of causes from a division of

that Court to the Court en Banc, set out in the appendix

to petitioners’ petition and brief (pages 50, 51) are not

important in so far as any objections of the respondent

to the granting of the petition are involved.

Before taking up in order the points in respondent’s

brief in opposition to the reasons for the writ as stated

in the petition, we wish to call attention to a statement

in respondent’s brief, which seems to be a definite con-

cession that there is a good and sufficient reason why

the Court should grant the petition and review the judg-

ment of the state court in this case. That concession is

the statement on page 15 in the second sentence in the

second paragraph, where, after referring to the point

made by petitioners in paragraph two of the Reasons

Relied on for Allowance of the Writ (Petition, page 11),

+hat and in the argument in their brief (pages 26 to 33)

that the evidence did,show and the jury was not required

to find that the hand brake was defective, the respondent

says, “We frankly concede our inability to find any deci-

sion of this Court which passes directly upon this aspect

of the provisions of the act, and of the order of the Com-

mission relating to ‘efficient hand brakes,’ * * *.” This

point will be discussed later in this reply where we en-

deavor to show the reasons why the cases relied upon

PO PORE NO i" set ee ane ene eee “ DETR Re PLA ARTE TOON oe!

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by respondent construing and applying the earlier Safety

Appliance Acts, like the act requiring that cars be

equipped with couplers coupling automatically by impact,

the very purpose of which is to eliminate human energy

and effort in the operation of the appliance, are not appli-

cable and should not be followed in this case, arising

under the later statute relating to hand brakes, which

the evidence of the respondent in this case shows cannot

be operated in any other way than by the exercise of the

human energy and effort of the operator (the respondent

in this case), which human energy and effort must be

exerted and applied with care, caution and exactness in

order to be effective and to avoid injury to the employee.

The first reason for the writ as stated in the petition

and the point which respondent discusses in Point I of

his reply is that the respondent only pleaded, and the

judgment is based solely upon, facts not made unlawful

by the Safety Appliance Act, that is that the petitioners

(defendants) failed to have the L. & N. Railway Com-

pany’s car equipped with an “efficient hand brake.”

However earnestly and often counsel for respondent

may endeavor to explain, evade or deny the cause of

action alleged in his petition, the fact remains that the

cause of action alleged—and the only cause of action

alleged—is that respondent’s injuries “directly and proxi-

mately resulted from defendants’ failure to perform their

duty under the Statutes of the United States of America

(commonly known as the Federal Safety Appliance Act),

and the orders, rules and regulations of the Interstate

Commerce Commission of the United States made and

promulgated pursuant thereto, in such cases made and

provided, to have said box car equipped with an efficient

hand brake” (R. 3).

The respondent is surely bound by the definite and

plain allegation of his petition. He may not change that

allegation now by claiming that he meant something

which he did not allege, or that what he alleged means

something different from what it plainly charges. It is

not necessary to argue against the respondent’s conten-

tion that the statute makes it unlawful for a carrier to

haul or use a car not equipped as the statute requires.

That may be conceded. The trouble, however, with re-

spondent’s case and contention is that he did not base

his right to recover on a charge that the petitioners did

the affirmative act made unlawful by the statute, that is,

that they used a car, which did not have an efficient hand

brake, but charged the petitioners with a negative omis-

sion, a failure to do something that the statute did not

require them to do, that is to have another carrier’s car

equipped as the statute and the order of the Interstate

Commerce Commission required. The statement in plain-

tiff’s petition, quoted in respondent’s brief, that while

he was working on cars being used on defendants’ lines

and in defendants’ Luther Avenue yards he was on a

car and when he was on the car and attempted to use

the hand brake on the car it reversed and threw him

from the car, does not change the direct and positive

allegation that his injuries “directly and proximately re-

sulted from defendants’ failure to perform their duty

* * * to have said box car equipped with an efficient

hand brake.”

If there were any room for doubt as to what this charge

— ee ee ee

in the plaintiff’s petition means, and we do not believe

there can be, it would be removed and overcome by the

allegation in the paragraph of plaintiff’s petition imme-

diately following the part quoted, which is as follows:

“Plaintiff further states that, as a direct and proximate

result of defendants’ aforesaid failure to comply with the

aforesaid laws of the United States of America and the

aforesaid orders, rules and regulations of said Interstate

Commerce Commission,” plaintiff received the injuries

described.

The Safety Appliance Act does not make it the duty

of one carrier to equip another carrier’s car with secure

hand holds or with efficient hand brakes, but the respond-

ent in this case alleged and recovered on the ground that

the petitioners failed to do what the act did not require

them to do. If there was any liability for a failure to

have the L. & N. car equipped with a proper hand brake,

the liability and the right to recover were against the

awner of that car. If respondent was injured as the “di-

rect and proximate result” of failure to “have said box

car equipped with an efficient hand brake,” as he twice

alleges, his right to recover was against the owner. While

the respondent twice alleges that he was injured as the

“direct and proximate result” of failure to have the car

equipped, he does not once allege that he was injured

as the result of the defendants using or hauling a car not

properly equipped, which is the thing the act makes

unlawful. This is clearly shown by section 3 of the Act

of April 14, 1910, section 13, Title 45, U. S. Code, which

is set out in full on page 48 of petitioners’ petition and

brief, and only partly quoted in respondent’s brief at

pages 11 and 12. The first part of the section shows that

ee ee ee Se

penalty provided is for using or hauling, or permitting

to be used or hauled, and nothing else. The portion of

the section quoted at the top of page 12 of respondent’s

brief provides that “nothing in this section shall be con-

strued to relieve sach carrier from liability in any reme-

dial action for the death or injury of any railroad em-

ployee caused to such employee by reason of or in con-

nection with the movement or hauling of such a car

which is defective or insecure or which is not maintained

in accordance with the requirements of this chapter

* * * (Emphasis ours.) This shows very definitely it

would seem that the only liability for injury or death

of an employee is “by reason of or in connection with the

movement or hauling of such a car which is defective or

insecure.” As might be expected, the respondent did not

supply any emphasis to the parts here emphasized. We

shall refer later to the part of this section of the act,

which so clearly shows that the liability to an injured

employee is only in connection with or by reason of “the

movement or hauling of a car which is defective or in-

secure,” and that the carrier is not liable and an employee

is not entitled to recover when he is injured while using

a hand brake unless he alleges in his pettition, proves

by the evidence and requires the jury to find that the car

was “defective or insecure.” All of which the state court

held was unnecessary in this case.

The two cases respondent cites on page 12 of his brief,

the Layton Case (243 U. S. 617) and the Taylor Case

(210 U. S. 281), shows’ that this Court has held that lia-

bility under the Safety Appliance Acts involved in those

cases, both for the penalty and for the injury to an em-

ployee, results from the use of a car not properly equipped,

and not from a failure to equip the car of another rail-

road. We are unable to see how respondent finds any

support in these cases. It will be remembered that neither

of these cases involved the use of a hand brake, and that

respondent's counsel say in their brief that they have

been unable to find a decision of this Court involving

such use.

In Louisville & N. R. Co. v. Layton, 243 U. S. 617, the

Court at page 618 said:

“The recovery in the case was on the first count

of the petition, which alleges that the defendants

were * * * negligent among other things in per-

mitting the use of the car attached to the engine and

of the car to which the attempt was made to couple

it, without such cars being equipped with automatic

couplers, which would couple by impact, as required

a ae, 7°

On page 621, the Court, interpreting and applying the

statute as written, says:

“* * * The language of the Acts (the Safety Appli-

ance Acts) and the authorities we have cited make

it entirely clear that the liability in damages to

employees for failure to comply with the law springs

from its being made unlawful to use cars not equipped

as required * * *.” (Emphasis ours.)

It probably is not necessary to cite cases to support

the proposition that the Court will consider and deter-

mine the nature of the pleading and the nature of the

cause of action alleged from the language of the plead-

ing and not from what counsel now say they intended

to allege or from their interpretation of the plain lan-

guage they used. We call attention, however, to one

recent decision of this Court on this point.

——.

In American Propeller & Manufacturing Co. v. United

States, 300 U. S. 475, the Court, at page 478, quoted from

its opinion in another case and said that the principle

there stated “suggests that the Court should not affirm

what is clearly an unjust and inequitable result unless

under plain compulsion of law.”

The Court, at page 479, rejected the contention of the

United States that the finding of the Court below should

be sustained based upon a presumption of official regu-

larity, and said:

“But we are dealing here not with a presumption,

but with a specific finding; and that finding should

be examined in the light of the pleadings.”

It seems clear that the state court in holding that the

respondent was entitled to recover under the Safety

3 Appliance Act of April 14, 1910, for failure of the peti-

: tioners to equip the car of another carrier with an effi-

cient hand brake, when the Act only creates liability

against a carrier for injuries or death of an employee

4 “by reason of or in connection with the movement or

hauling of such car,” has decided a Federal question of

D substance not heretofore determined by this Court, and

; has decided the question in a way probably not in accord

with applicable decisions of this Court, requiring that the

nature of the cause of action upon which a plaintiff seeks

to recover, must be determined from the pleading filed

by the plaintiff. Under the Rules of this Court, the review

of that decision would seem to be the exercise of sound

judicial discretion.

in 9

II.

The respondent disregards the definite distinction that

exists between the provisions of the Acts of Congress relat-

ing to hand brakes and other safety appliance, particularly

automatic couplers, and between the manner of operation

of these different appliances.

The provisions of the act relating to equipping cars

with hand brakes, enacted April 14, 1910, and the auto-

matic coupler and air brake act of March 2, 1893, amended

March 2, 1903, are entirely different. The manner of opera-

tion of automatic couplers is entirely different from the

manner of operating hand brakes and in both respects, and

for both reasons the decisions of the courts under the

automatic coupler law are not applicable in cases arising

under the hand brake law.

While some state and federal courts have held that evi-

dence of failure of a hand brake appliance to function

propertly when used in normal and proper manner, was

sufficient to justify a jury in finding from that evidence

that the appliance was defective, no appellate decision has

been cited, and we believe none can be found, certainly no

decision of this court can be found, which holds that a

verdict of a jury should be approved when the jury was

not required by the instructions of the court, to find from

the evidence that the appliance was defective.

The respondent on page 15 of his brief in opposition to

the petition, after referring to the word “efficient” as con-

tained in the Act of April 14, 1910, and the order of the

Interstate Commerce Commission made pursuant to that

Act, says:

“We frankly concede our inability to find any de-

Beene

cision of this Court which passes directly upon this

aspect of the provisions of the Act and of the order

of the Commission relating to ‘efficient hand brakes’.”

The respondent then argues that the decisions of the

lower federal courts and the state courts should be fol-

lowed by this court presumably, and apparently, because

this court in eight cases cited by the respondent denied

certiorari to review the decisions of those courts.

Counsel for respondent in their brief cite eight different

cases in which they say this court denied certoirari. They

call attention nineteen times to the action of the Court

denying certiorari and they state five times that certiorari

was denied in Spotts v. Baltimore & Ohio R. Co., 7 Cir.,

102 F. (2d) 160, which is the case upon which they seem

to rely most hopefully.

They seem to have entirely overlooked the ruling an-

nounced by this court, both upon the oral argument of

cases and in its opinions, that the denial of a petition for

writ of certiorari means only that the writ was denied.

This court in United States v. Carver, 260 U. S. 482, a

libel in personam against the United States and the re-

ceiver of a corporation, at page 490, says:

“The denial of a writ of certiorari imports no ex-

pression of opinion upon the merits of the case, as

the bar has been told many times. Therefore it is

unnecessary to consider whether the libellants’ argu-

ment is supported by the decisions to which they

refer.”

In Atlantic Coast Line R. Co. v. Powe, 283 U. S. 401,

the action was under the Federal Employers’ Liability Act

oS |

ee ae ee a ee

—

AS:

for the death of a switchman who was killed when he

came into contact with a semaphore placed at a greater

distance from the track than the order of the South

Carolina Railroad Commission prescribed.

The Court in the opinion by Mr. Justice Holmes at page

403 said:

“* * * No negligence is proved against the peti-

tioner. It is urged that a certiorari was denied in

Central of Georgia Ry. Co. v. Davis, 7 F. (2d) 269,

which seemed to qualify the doctrine in the Berk-

shire case (254 U. S. 415). But ‘the denial of a writ

of certiorari imparts no expression of opinion upon

the merits of the case, as the bar has been told

many times.’ United States v. Carver, 260 U. S. 482,

490.”

The judgment of the Supreme Court of South Carolina

was reversed.

These decisions of the Court would seem to fully justify

the conclusion that the denia! of certiorari in the numer-

ous cases cited and relied upon by respondent, and par-

ticularly the denial in the Spotts case (102 F. |2d| 160),

will not be held to support the decision of the state court

in this case and we believe the Court will not be in-

fluenced in the consideration of the petition for the writ

in this case by the numerous citations of denial in other

cases.

In South Chicago Coal & Dock Co. v. Bassett, 309 U. S.

251, the Court reviewed the decision of the Court of

Appeals and at page 253 said: “Because of an alleged

conflict with a decision of the Court of Appeals of the

Fifth Circuit in the case of Maryland Casualty Co. v.

wer, LOE SAI INAS TAN I PE IEE MRI AON a

Lawson, 93 F. (2d) 190, we granted certiorari.”” The ques-

tion in that case was whether the deceased was a member

of the crew of the vessel on which he was performing

services within the meaning and scope of the Longshore-

men’s and Harbor Workers’ Compensation Act.

The Court at page 258 says:

“Petitioners urge that the question whether the

decedent was a member of a ‘crew’ was a question

of law. That is, that upon the undisputed facts the

decedent must be held as a matter of law to have

been a member of a ‘crew’ as distinguished from a

longshoreman or laborer at work upon the vessel.

We are unable so to conclude.

“The word ‘crew’ does not have an absolutely un-

varying legal significance.”

The Court then cited a case which stated varying uses

of the term and at page 259 says, “It was therefore deemed

necessary to consider the context of the particular use of

the term and the object to be accomplished by the enact-

ment under consideration.”

The Court held that the term “crew” in that case did

not apply to the deceased.

So in this case, it seems that the petitioners are fully

justified in asking the Court to review the decision of the

state court to consider and determine whether the use of

the term “efficient hand brake” as used in section 2 of this

Safety Appliance Act, means that the carrier is an insurer

at all hazards and regardless of whether the appliance

is defective, or if that term is to be interpreted and applied

in connection with and in the light of the use of the terms

“defective and insecure” and “defective” and “out of re-

LL RIERA NAOT. SP PB IRE Bt a BA GH

aaa AR EE ee ROLE aN NEO GR PENNE OE

pair” as used five times in sections 4 and 5 of the same

Safety Appliance Act in defining the conditions and cir-

cumstances under which a carrier may be or may not be

liable for using a car, having a defective hand brake. It |

will be noted that in every instance where the carrier is q

to be held liable either for the penalty or for injury to an :

employee, it is only for the movement of a car that is ;

defective. The state court wholly overlooked this.

The title of the Act of April 14, 1910, shows that the ,

Act was not intended as insurance against injury. The title &

is “An Act to supplement ‘An Act to promote the safety

of employees and travelers upon railroads,” etc. To

“promote” does not mean to “insure.” It means to help

to contribute to the prosperity of employees and travelers

upon railroads.

It is clear that Congress intended to and did make a

distinction in this Act between sill steps and hand holds

or grab irons, and hand brakes, for in section 2 of the

Act it said that ‘all cars must be equipped with secure

sill steps and efficient hand brakes; all cars requiring

secure ladder and secure running boards shall be equipped

with such ladders and running boards, and all cars having

ladders shall also be equipped with secure hand holds or

grab irons.” The term “secure” means safe, free from

danger, incapable of doing harm and is applied to appli-

ances and equipment which are fixed, permanent parts

of a car and are not operated or put into action or use

by any human action or agency, whereas the only way the

hand brake can be used or made useful or effective or

efficient is by human action, agency and energy. The dis-

tinction and difference are still greater when the require-

ments of the statutes and manner of use of automatic

couplers and hand brakes are considered.

In United States v. American Trucking Association,

310 U. S. 534, the Court stated principles which seem

applicable to the questions involved in this case now

presented to the Court. In that case, at page 541, the

Court said:

“In the interpretation of statutes, the function of

the courts is easily stated. It is to construe the

language so as to give effect to the intent of Con-

gress. There is no invariable rule for the discovery

of that intention. To take a few words from their

context and with them thus isolated to attempt to

determine their meaning, certainly would not con-

tribute greatly to the discovery of the purpose of

the draftsmen of a statute, particularly in a law

drawn to meet many needs of a major occupation.”

The respondent cites several decisions of this Court in

cases which arose under the Act of March 2, 1893, re-

quiring that cars be equipped with automatic couplers

and efficient handholds. Respondent argues that the rul-

ing of this Court in automatic coupler cases ought to be

applied in this case. This Court has answered that argu-

ment by its ruling in Wright v. United States, 302 U. S.

583, in answering the similar argument with respect to

the decision of the Court in the Pocket Veto case. The

Court, at page 593, said:

“In interpreting the word ‘adjournment’, and in

referring to other provisions of the Constitution using

the word ‘adjourn’, the Court was still addressing

itself to a case where there had been an adjournment

by the Congress. The Court did not decide, and there

was no occasion for ruling, that the clause applies

where the Congress has not adjourned and a tem-

porary recess has been taken by one House during

the session of Congress. Any observations which

could be regarded as having a bearing upon the

question now before us would be taken out of their

proper relation. The oft-repeated admonition of Chief

Justice Marshall ‘that general expressions, in every

opinion, are to be taken in connection with the case

in which those expressions are used’, and that if

they go ‘beyond the case, they may be respected, but

ought not to control the judgment in a subsequent

suit when the very point is presented for decision’,

has special force in this instance. Cohen v. Virginia,

6 Wheat. 264, 399. 5 L. ed. 257, 290.”

The ruling of the Court in the case just cited seems to

fully justify the petitioners here in asking the Court in

passing upon the petition for the writ to disregard the

decisions of the Court in the cases arising under the

automatic coupler law as well as the rulings and orders

of the Court in denying certiorari in the numerous cases

cited by respondent.

While the respondent expresses dissatisfaction with the

statement of facts made by the petitioners there are cer-

lain portions of the respondent’s statement which we

1ccept as correct, for they state the facts as petitioners

have stated them. Respondent says on page 3 of his

orief in opposition to the petition, that the type of brake

on this car, L. & N. 12670, “is clearly illustrated by the

ohotographs offered in evidence as defendents’ Exhibits

lO (R. 125), 11 (R. 126), and 12 (R. 164).”

He also says on page 3 of his brief that the brake

ipparatus was equipped “with a ratchet wheel and pawl

rangement attached on the upper side of the brake

dlatform.” In describing his actions at the time of injury

1e says that after he climbed to the brake platform,

“He then placed his left foot against the outer edge of

the pawl or ‘dog’ to engage it with the teeth of the

ratchet wheel (R. 26, 86) and turned the wheel in a clock-

wise direction to tighten the brake (R. 26, 87). He con-

tinued to-86 2-brake wheel until he had tension

on the brake (R. 26, 29, 86, 87)"andwasu id.so, he kept

his left foot against the pawl * * *.” (Respondent’s Brief.

p. 3.)

The statement continues on page 4 of the brief as

follows:

“After respondent had tension on the brake, and

while he still had his foot against the pawl and

without any change, slipping or other movement of

his body (R. 30, 32, 108) the pawl or ‘dog’ failed to

hold the brake in position and to keep it from re-

versing (R. 108 * * *.”

On page 5 respondent says that the inspection tests

made the night and morning after the injury “failed to

disclose any physical defect in the brake.”

The photograph of the car L. & N. 12670 taken the

morning after the injury (Defendants’ Exhibit 10, facing

R. 125) shows the brake staff marked 1, the ratchet wheel

marked 3, which respondent testified was fastened to

the brake staff, the dog or pawl marked 2, which re-

spondent testified was fastened onto the iron plate on

which the ratchet wheel marked 3 rested, and the safety

guard marked 4 which is a part of the casting to which

the dog or pawl was fastened and on which the ratchet

wheel rested, this guard extending about an inch over

the prongs of the ratchet wheel (R. 125, 126, 127). A

brake platform with the iron plate or casting, the ratchet

wheel, the dog or pawl and the safety guard extending

over the edge of the ratchet wheel, which was like the

brake platform and appliances shown in the photograph

of the car in question (Defendants’ Exhibit 10), was de-

scribed by the witnesses (R. 126, 127, 142, 143) and re-

spondent in his brief, page 3. The safety guard over the

—- eel prevents the ratchet wheel from coming

of the Ge szequirements (R. 143).

The undisputed physical facts show that the brake

wheel could not have reversed because “either the ratchet

came above the dog or the dog came above or below the

ratchet,” as respondent said in his statement made on

March 3, 1938 (R. 102), and in his explanation of this

statement made in his testimony at the trial on redirect

examination (R. 106, 108) after the statement had been

read in evidence (R. 102). He said in his statement (R.

105), “I don’t know if any part of the brake was faulty

or broken as a fact, but I know that it did not hold.”

The respondent testified that “the brake staff extended

through the ratchet wheel,” that “the ratchet is fastened

onto the brake staff” (R. 86, 108), that the dog or pawl

“was a curved piece of iron or steel that had a hole

through about the center of the length of it that fastened

the dog onto this iron plate that the ratchet wheel rested

on” (R. 86). He testified that each time he turned the

brake wheel he heard the dog click in the ratchet wheel

(R. 27, 87).

Each time the brake wheel was turned from left to y

right to tighten the brake, the point of the dog or pawl 4

which meshed in the notches between the prongs of the .

ratchet wheel when pressure was applied to the dog or

8. a OAT et ON, EK 2 s om ana: a

pawl so as to hold the point against the revolving prongs

of the ratchet wheel, had to clear the end of the prongs

of the ratchet and as the brake wheel was turned from

left to right, or clockwise, the point of the dog or pawl

would have to be moved from the notch between the

prongs so as to clear the end of the next prong of the

ratchet before the pawl could go into mesh with the next

notch of the ratchet wheel and at that time as the point

of the pawl was passing over the point of the prong of

the ratchet wheel the pawl is temporarily disengaged and

could not hold the ratchet wheel or prevent the brake

wheel from reversing. The plaintiff testified to this (R. 29)

and so did a car inspector (R. 154), and unless the man

ake soo his foot firmly pressed continuously

against ‘the dog ight place on the

pawl so that the pee of the pawl would mové into thelim

notch between the prongs of the rathchet wheel the

instant the end of the pawl passed over the end of the

prong, the brake wheel would reverse rapidly when the

operator released or started to release his hold on the

brake wheel after having turned it from left to right

and when in the act of changing the position of his hands

on the brake wheel in order to give it another turn from

left to right. This is evidently what happened for the

respondent said in his statement (R. 104), “and when I

let loose of the wheel or started to let loose the wheel

spun around and I could not let loose and it threw me

to the left or east.”

If the respondent had his left foot against the outer

edge of the dog or pawl, as is stated in his brief, in order

to press the point of the pawl against the ratchet wheel

and cause it to mesh in the notches of the ratchet wheel

as he turned the brake wheel he had to have his foot

<a Pee Na ke ROR ET) . somes

pressing continuously against the forward portion of the

curved or S shaped pawl, that is the portion nearest the

car and between the bolt at the center, which fastened it 7

to the iron trunnion or plate on which it rested, and the ;

end of the pawl which meshed in the notches of the i!

ratchet wheel, as he applied his strength in turning the :

brake wheel from left to right to tighten the brake and é

check the movement of the car. Wherever he placed his £

left foot against the dog or pawl, as he stood on the wet, 5

sleety brake platform wearing rubbers on account of the

weather, he had to keep his rubber clad foot pressed

firmly against the dog or pawl at a point on the pawl

so that the end of it would be firmly and continuously

pressed against the prongs of the ratchet wheel as it

turned, and if he released the pressure or shifted the

position as his left foot even in a slight degree, the end

: he next notch of

the adjoining prong of the ratchet wheel, and there

would be nothing to hold the brake and the brake wheel

when he released or started to release his hold on the

brake wheel to get a new hold and the brake wheel

would invitably reverse, as respondent testified (R. 29); if

it did reverse as respondent says.

We are, of course, considering this testimony offered

by the plaintiff, and not the positive testimony of the :

switch foreman (R. 269, 273) that the brake was securely F

set and the pawl was holding the ratchel wheel when :

plaintiff fell from the car.

The case of Spotts v. Baltimore & Ohio, 102 F. (2d) 160,

on which the respondent seems to rely, was quite different

from the case at bar. In that case the Court says that the

"epee:

eee,

complaint charged that “defendant negligently failed to

equip properly a certain car with an efficient brake wheel

and brake staff, contrary to the provisions of the Safety

Appliance Act, negligently provided a brake staff and

wheel which fell to one side, when plaintiff attempted

same, and permitted the brake to be and remain in a

defective and unsafe condition contrary to the provisions

of the Safety Appliance Act.” (Emphasis ours. )

In this case plaintiff contended, and the state court ruled,

that plaintiff was not required to allege or prove that

defendants were negligent or that the brake was defective.

In that case, the plaintiff did not allege a right to recover

under the Federal Employers’ Liability Act. In this case

the plaintiff expressly based his right to recover under

the provisions of the Federal Employers’ Liability Act.

‘R. 3.)

The petitioners believe that the differences that exist

between the provisions of the Act of April 14, 1910, in

relation to hand brakes, and the provisions of prior Safety

Appliance Acts relating to automatic couplers and other

appliances not requiring the exercise of human effort, the

giference between the operation of automatic couplers,

which are “réquired=in.ord er that men will not have to

go between the ends of cars and-exert-any -hume n,effor

in coupling cars, while the use of hand brakes necessarily

requires the careful and constant exercise of human effort

in their operation, and the fact this court has never ruled

on these questions which relate directly to railroad opera-

tion over the entire country, fully justify the consideration

of this court to determine whether an employee can recover

for injuries while using a hand brake without alleging or

proving or requiring the jury to find that the hand brake

was defective or out of repair.

Il.

The plaintiff (respondent) alleged he was injured be-

cause of the failure of the defendants (petitioners) to

have the car equipped with hand brake in accordance with

the orders and regulations of the Interstate Commerce

Commission. Section 3 of the Act of April 14, 1910 (Sec.

12, Title 45, U. S. Code), expressly provides that the stand-

ards fixed by the Interstate Commerce Commission shall

be the standards of equipment required by the Act, and

compliance with those orders and regulations and the

equipping of a car with a hand brake which conforms to

the standards fixed by the Commission, is all that is

required by the Act. The respondent wholly failed to

prove and the jury was not required to find from the

evidence that the hand brake respondent was operating

| or attempting to operate did not comply with the orders

_ and regulations of the Commission. This was an essential

| part of respondent’s pleading and an essential fact to be

proved by the respondent and found by the jury, but it was

entirely ignored by the state court. It is a federal question

of substance not heretofore determined by this court, and

for this reason it should, it would seem, be reviewed by

this court.

The Seed does not cite any decision of this court

presents no valid reason for refusal

an hideemna

by this court 75 review

In the Spotts case (102 F. [2d] 160) cited and relied on

by respondents, the defendant carrier there proved and

seems to have relied upon the fact that the type of brake

involved in that case was used by the Railroad Adminis-

tration during the previous World War and that at the close

of the Railroad Administration 500 cars so equipped were

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delivered to defendant, and defendant insisted that the

order of the Interstate Commerce Commission of March

13, 1911, specifying that cars should be equipped with

“hand brakes of an efficient design,’ was an approval of

the hand brake in use on the car involved in that case.

The Court of Appeals at page 163 of 102 F. (2d) says:

“The order of the Interstate Commerce Commission is

merely a direction to comply with the statute requiring

an ‘efficient hand brake’.’’ On the same page the Court says,

‘Here the Commission has prescribed merely any ‘efficient

hand brake’; it has included no specific requirements and

fixed no standard as filling the demands of ‘efficiency’.”

It is manifest that the Circuit Court of Appeals in that

case was not fully informed as to the scope of the order

of the Interstate Commerce Commission or it would never

have said that the Commission “has included no specific

requirements and fixed no standard as filling the demands

of ‘efficiency’.”

As a matter of fact and as that court ought to ha-~

known, for courts take judicial notice of the orders of the

Interstate Commerce Commission, the Commission had in-

cluded specific requirements and had fixed standards fill-

ing the requirements for an efficient hand brake.

Those specific requirements and fixed standards are set

forth in 2 Roberts Federal Liabilities of Carriers, Second

Edition, pages 2010, 2011 and 2012 and for the convenience

of the Court they are here set forth as follows:

a Ona erie hes

Ph ere te te sac

nebibddiAtheaition a

SAFETY APPLIANCE STANDARDS

BOX AND OTHER HOUSE CARS

Handbrakes

Number:

Each box or other house car shall be equipped with

an efficient handbrake which shall operate in

harmony with the power-brake thereon.

The handbrake may be of any efficient design, but

must provide the same degree of safety as the

design shown on Plate A.

Dimensions:

The brake-shaft shall be not less than one and one-

fourth (1'4) inches in diameter, of wrought iron

or steel without weld.

The brake-wheel may be flat or dished, not less

than fifteen (15), preferably sixteen (16) inches

in diameter, of malleable iron, wrought iron or

steel.

Location:

The handbrake shall be so located that it can be

safely operated while car is in motion.

The brake-shaft shall be located on end of car. to

the left of and not less than seventeen (17) nor

more than twenty-two (22) inches from center.

Manner of Application:

There shall be not less than four (4) inches clear-

ance around rim of brake-wheel.

Outside edge of brake-wheel shall be not less than

four (4) inches from a vertical plane parallel with

end of car and passing through the inside face

of knuckle when closed with coupler-horn against

the buffer-block or end-sill.

Top brake-shaft support shall be fastened with not

less than one-half (12) inch bolts or rivets.

—

A brake-shaft step shall support the lower end of

brake-shaft. A brake-shaft step which will per-

mit the brake-chain to drop under the brake-

shaft shall not be used. U-shaped form of brake-

shaft step is preferred.

Brake-shaft shall be arranged with a square fit at

its upper end to secure the handbrake wheel;

said square fit shall be not less than seven-eighths

(%) of an inch square. Square-fit taper; nom-

inally two (2) in twelve (12) inches.

Brake-chain shall be of not less than three-eighths

(38), preferably seven-sixteenths ((%), inch

wrought iron or steel, with a link on the brake-

rod end of not less than seven-sixteenths (,‘:),

preferably one-half ('), inch wrought iron or

steel, and shall be secured to brake-shaft drum

by not less than one-half ('2) inch hexagon or

square-headed bolt. Nut on said bolt shall be

secured by riveting end of bolt over nut.

Lower end of brake-shaft shall be provided with

a trunnion of not less than three-fourths (4),

: preferably one (1), inch in diameter extending

through brake-shaft step and held in operating

position by a suitable cotter or ring.

Brake-shaft drum shall be not less than one and

one-half (1!2) inches in diameter.

Brake ratchet-wheel shall be secured to brake-shaft

by a key or square-fit; said square-fit shall be

not less than one and five-sixteenths (1,°,) inches

square. When ratchet-wheel with square-fit is

used provision shall be made to prevent ratchet-

wheel from rising on shaft to disengage brake-

pawl.

Brake rachet-wheel shall be not less than five and

one-fourth (5%), preferably five and one-half

(5%), inches in diameter and shall have not less

than fourteen (14), preferably sixteen (16). teeth.

If brake ratchet-wheel is more than thirty-six (36)

inches from brake-wheel, a brake-shaft support

shall be provided to support this extended upper

portion of brake-shaft; said brake-shaft support

shall be fastened with not less than one-half (12)

inch bolts or rivets.

The brake-pawl shall be pivoted upon a bolt or

rivet not less than five eighths (5s) of an inch in

diameter, or upon a trunnion secured by not less

than one-half (12) inch bolt or rivet. and there

shall be a rigid metal connection between brake-

shaft and pivot of pawl.

Brake-wheel shall be held in position on brake-

shaft by a nut on a threaded extended end of

brake-shaft; said threaded portion shall be not

less than three-fourths (°4) of an inch in diam-

eter; said nut shall be secured by riveting over

or by the use of a lock-nut or suitable cotter.

Brake-wheel shall be arranged with a square-fit

for brake-shaft in hub of said wheel; taper of

said fit, nominally two (2) in twelve (12) inches.

Brake-Step.

If brake-step is used it shall be not less than

twenty-eight (28) inches in length. Outside edge

shall be not less than eight (8) inches from face

of car and not less than four (4) inches from a

vertical plane parallel with end of car and pass-

ing through the inside face of knuckle when

closed with coupler-horn against the buffer-block

or end-sill.

Manner of Anplication:

Brake-step shall be supported by not less than two

metal braces having a minimum cross-sectional

area three-eishths (%4) by one and one-half (11%)

inches or equivalent. which shall be securely

fastened to body of car with not less than one-

half (4) inch bolts or rivets.

We repeat what has already been said, that there is

not a word of evidence in the entire record that the hand

brake failed in any particular to comply with these re-

quirements of the Interstate Commerce Commission. We

believe the Court in this case should say as it said in

the Scarlett case, that when the carrier has complied

with the requirements of the Interstate Commerce Com-

mission, then neither plaintiff nor Court nor jury can be

allowed to say that the hand brake was defective or not

efficient or that the defendants did not perform their

duty under the Safety Appliance Act and the orders,

rules and regulations of the Interstate Commerce Com-

mission. That certainly should be the ruling when plain-

tiff, as in this case, having on rubbers and chamois skin

gloves fell from the wet brake platform on a rainy, sleety

night, and when each time he turned the brake wheel he

heard the dog or pawl click in the ratchet wheel, which

showed that the dog was holding the brake, and when

he stated that he did not know of any defect in the hand

brake, that when he let loose or started to let loose of it,

it suddenly spun and reversed and he could not let go

of it.

In Illinois Central R. Co. v. Williams, 242 U. S. 462,

the plaintiff recovered judgment for injuries received

“when the handhold or grab iron placed at the top of

the ladder, and required to be fastened securely to the

roof of the car, gave way, causing him to fall to the

ground and sustain injuries.”

On page 464 the Court says:

“A box car could not properly be used without a

secure ladder, and since, by its terms, all cars having

ladders must be equipped with secure handholds, the

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application of this section * * * to the case at bar,

the neglect of its requirements, and the liability of

the defendants to the plaintiff for the result to him

of such neglect, are too clear for discussion.” (Em-

phasis ours.) |

The Court then states the provision of the Act requir-

ing the Interstate Commerce Commission to “designate

the number, dimensions, location and manner of applica-

tion of the appliances,” and says (page 465) that ‘“‘a failure

to conform its equipment to such standards shall subject

the neglecting carrier to like penalty as failure to comply

with any requirement of the act.’ (Emphasis ours.)

The Court also says:

“Pursuant to the command of this 3rd section, the

Interstate Commerce Commission on March 13, 1911,

issued an order designating ‘the number, dimensions,

sizes and manner of application of the appliances

provided for by section 2 of the act’ (which included

hand brakes), and specifically describing the size,

character, and location of ladders on ‘freight-train

cars’ and of handholds to be maintained at the tops

of such ladders, and of hand brakes also.”

And yet, notwithstanding what this Court said in that

case, the Circuit Court of Appeals in the Spotts case say

that the Interstate Commerce Commission has not made

such designation and has not fixed any standard.

In Atchison, Topeka & Santa Fe Ry. Co. v. Scarlett,

300 U. S. 471, the plaintiff sued for damages for an alleged

violation of the Federal Safety Appliance Act (Act of

April 14, 1910, c. 160, Sections 2 and 3, 36 Stat. 298),

which is the same act under which the respondent in

this action sued.

The Court, at page 472, said:

“The ladder itself was not defective. In its struc-

ture it complied with the regulations of the Inter-

state Commerce Commission made in pursuance of

the act, ‘United States Safety-Appliance Standards’—

order of March 13, 1911. It is unnecessary to set

forth these regulations. The only one important here

prescribes—‘Minimum clearance of treads, (shall be)

two (2), preferably two and one-half (2%) inches’.”

The Court, at page 474, says:

“In the light of the long-continued use of brace

rods of the type here in question in the same rela-

tion to the ladder as in the case here, we may fairly

presume that the Interstate Commerce Commission

in the performance of its duties was aware of the

situation, and knowingly permitted its rule in respect

of the ladder clearance to remain without change.

Compare Pennell v. Philadelphia & Reading Ry., 231

U. S. 675, 680. The regulation having been made by

the Commission in pursuance of constitutional statu-

tory authority, it has the same force as though pre-

scribed in terms by the statute. And the railroad

company having strictly complied with the regula-

tion has discharged its full duty so far as the ladder

requirement of the Safety Appliance Act is con-

cerned. The judgment of the trial court and jury

cannot be substituted for that of the commission.”

In Chicago Great Western R. Co. v. Rambo. 298 U. S.

99, the plaintiff sued to recover damages for death alleged

to have been the result of a violation of the Federal

Boiler Inspection Act. This court on writ of certiorari

reviewed the judgment of the Supreme Court of Minne-

sota. The Court, at page 100, says:

“Several acts of negligence were alleged, but the

trial court submitted only one to the jury: Failure

to equip the locomotive with a headlight of the

illuminating power required by Federal law.”

On page 101 the Court says:

“In cases like this, we must examine the record

and determine for ourselves whether as a matter of

law there is enough evidence to sustain a finding of

negligence (citing cases). (Emphasis ours.)

On page 102 the Court stated the evidence as contained

in the opinion of the state court and says:

“This apprizement of the evidence, we think, is

not well founded. Properly interpreted, the record

fails to establish that the headlight fell below the

prescribed standard. The argument for respondent

dwells too hard on conjecture (citing cases).”

The evidence of the engineer of the locomotive and of

another witness tended to show that the headlight was

not sufficient to properly illuminate the track 800 feet

ahead. The Boiler Inspection Act authorized the Inter-

state Commerce Commission to prescribe rules and regu-

lations fixing the standards necessary to constitute com-

pliance with this Safety Appliance Act and the Com-

mission by its Rule 129 prescribed the standard (298 U. S.

loc. cit. 100).

The Court, at page 105, says:

“Nothing in all this gives substantial support to

the notion that the headlight failed to illuminate the

track 800 feet ahead, or was below the required

standard.”

PON LE veh we PORTS Re he RES zi : - ae

The respondent is entirely mistaken when he says

(page 17, Respondent's Brief), “The petitioners here do

not contend, and cannot contend, that there was no proof

of the inefficiency of the hand brake here involved.”

It is surprising that counsel for respondent would make

that statement, for the petitioners in paragraph 3 of

Reasons Relied on for Allowance of the Writ (page 12),

say, “3. The state court erred in holding that the plain-

tiff was entitled to recover * * * for the reason that there

was no evidence that the hand brake equipment failed

in any particular to comply with the rules, orders or

regulations of the Interstate Commerce Commission

* * *” The same contention is made by the petitioners

in their brief at page 33.

It is a well established rule of construction of statutes

that the intention of Congress is to be determined by

a consideration of all the parts and provisions of an act,

and the Act of April 14, 1910, should be construed in

accordance with that rule, while Section 2 of that act

(section 11, Title 45, U. S. Code) says, “All cars must be

equipped with * * * efficient hand brakes,” section 3 of

the act (section 12, Title 45, U. S. Code) says:

“The number, dimensions, location and manner of

application of the appliances provided for by sections

4 and 11 of this chapter as designated by the Inter-

state Commerce Commission shall remain as the

standards of equipment to be used on all cars sub-

ject to the provisions of this chapter * * *.”

The plaintiff's petition charged that defendants (peti-

tioners) were liable on the ground that they had failed

to comply with the requirements of the statute and “the

orders, rules and regulations of the Interstate Commerce

Commission of the United States made and promulgated

AOE SA GED OE LIEL EE CPTI LEEDS 6 NE CAE MES BE 20 NOG eS

pursuant thereto, in such cases made and provided to

have said box car equipped with an efficient hand brake.”

Of course this becomes unimportant and is answered

if the contention of the petitioners be correct that they

are entitled to the immunity claimed under the Federal

Employers’ Liability Act and the Safety Appliance Act

of April 14, 1910, in that the petition does not state a

cause of action against them as a railroad carrier be-

cause it does not allege that plaintiff was injured “by

reason of any defect or insufficiency, due to its (peti-

tioners’) negligence, in its cars,” and does not base the

right to a judgment against petitioners on the ground

that they were using a car “not equipped as provided in

this chapter” (Appendix to petition and brief, pp. 47 and

48), which is the only offense made punishable or penal-

ized by the statute, but only charges that plaintiff’s in-

jury “directly and proximately resulted from defendants’

failure to perform their duty * * * to have said box car

equipped with an efficient hand brake” (R. 3).

The record in this case shows not only that the re-

spondent failed to prove that the hand brake did not

conform to the standards fixed by the Interstate Com-

merce Commission and that his injuries “directly and

proximately resulted from defendants’ failure to per-

form their duty under * * * the orders, rules and regu-

lations of the Interstate Commerce Commission,” as he

alleged twice in his petition (R. 3), but that the hand

brake was not defective and did comply with the stand-

ards fixed by the Commission, under the authority and

command of the Act of April 14, 1910, and for this reason

the judgment of the state court should be reviewed by

this Court in the exercise of its sound judicial discre-

tion.

eat —

IV.

The respondent is mistaken in his contention that,

although he bases his case and his right to recover upon

the Federal Employers’ Liability Act, as he had to do

in order to maintain a suit in the courts, he can evade

and ask the Court to ignore the provisioi: of that act

which make the carrier liable and give respondent a

right to recover in this case only by pleading, proof and

finding by the jury that his injury when he fell from the

car was caused by some “defect or insuffiency, due to its

(petitioners’) negligence, in its cars.”

This Court has in numerous cases held that proof of

negligence and a defect in the equipment are essential

in a suit based upon the Federal Employers’ Liability

Act, as this case is necessarily based.

In Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 492,

the Court reversed the judgment of the Supreme Court

of North Carolina which affirmed a judgment in favor

of the plaintiff in an action brought under the Federal

Employer’s Liability Act. The Court quoted the provi-

sions of the Act giving a right of action for injury re-

ceived by an employee “resulting in whole or in part

from the negligence of any of the officers, agents or

employees of such carrier, or by reason of any defect or

insufficiency, due to its negligence, in its cars, engines,

appliances, machinery, tracks, roadbed, work, boats,

wharves, or other equipment.”

The Court at page 501, after quoting this provision of

the Act said:

“This clause has two branches; the one covering

the negligence of any of the officers, agents, or em-

ployees of the carrier, which has the effect of abol-

ishing in this class of cases the common-law rule

that exempted the employer from responsibility for

the negligence of a fellow employee of the plaintiff;

and the other relating to defects and insufficiencies

in the cars, engines, appliances, etc. But, plainly,

with respect to the latter as well as the former

ground of liability, it was the intention of Congress

to base the action upon negligence only, and to ex-

clude responsibility of the carrier to its employees

for defects and insufficiencies not attributable to neg-

ligence. The common-law rule is that an employer

is not a guarantor of the safety of the place of work

or of the machinery and appliances of the work; the

extent of its duty to its employees is to see that

ordinary care and prudence are exercised to the end

that the place in which the work is to be performed

and the tools and appliances of the work may be safe

for the workmen. (Citing cases.) To hold that under

the statute the railroad company is liable for the

injury or death of an employee resulting from any

defect or insufficiency in its cars, engines, appliances.

etc., however caused, is to take from the act the

words ‘due to its negligence’. The plain effect of these

words is to condition the liability upon negligence;

and had there been doubt before as to the common-

law rule, certainly the act now limits the responsi-

bility of the company as indicated. The instructions

above quoted imposed upon the employer an abso-

lute responsibility for the safe condition of the appli-

ances of the work, instead of limiting the responsi-

bility to the exercise of reasonable care. In effect,

the jury was instructed that the absence of the guard

glass was conclusive evidence of defendants’ negli-

gence. In this there was error.”

The Court then considered the provisions of the Fed-

eral Employer’s Liability Act providing that the employer

AT PTS Oy AF Pn TER ee oe ee ea a

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could not defend on the ground of assumption of risk

or contributory negligence of the employee “in any case

where the violation by such common carrier of any stat-

ute enacted for the safety of employees contributed to the

injury or death of such employee.”

The decision of this Court in the Horton case was ren-

dered on April 27, 1914, more than four years after the

enactment of the Safety Appliance Act of April 14, 1910,

relating to hand brakes and ladders on cars. The Court

had before it in this decision the Act of April 14, 1910,

chap. 103. 36 Stat. at L. 913, for on page 503 the Court,

after quoting the provisions pertaining to assumption of

risk and contributory negligence, says:

“By the phrase ‘any statute enacted for the safety

of employees,’ Congress evidenctly intended Federal

statutes, such as the safety appliance acts (27 Stat.

at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174;

32 Stat. at L. 943, chap. 976, U. S. Comp. Stat. Supp.

911, p. 1314; 36 Stat. at L. 298, chap. 160, U. S. Comp.

Stat. Supp. 911, p. 1327; id. 913, chap. 103, U. S.

Comp. Stat. Supp. 911, p. 1333), and the hours of

service act (34 Stat. at L. 1415, chap. 2939, U. S.

Comp. Stat. Supp. 1911, p. 1321). For it is not to be

conceived that, in enacting a general law for estab-

lishing and enforcing the responsibility of common

carriers by railroad to their employees in interstate

commerce, Congress intended to permit the legisla-

tures of the several states to determine the effect of

contributory negligence and assumption of risk, by

enacting statutes for the safety of employees, since

this would in effect relegate to state control two of

the essential factors that determine the responsibility

of the employer.

“It seems to us that section 4, in eliminating the

defense of assumption of risk in the cases indicated,

S/S LENT RL IP Ae al ek PRE

2 TERIA A BD NLGEEDE TOU AGE EIDE EIA ALOT! GL PET ORREE A

quite plainly evidences the legislative intent that in

all other cases such assumption shall have its former

effect as a complete bar to the action. And, taking

sections 3 and 4 together, there is no doubt that Con-

gress recognized the distinction between contribu-

tory negligence and assumption of risk; for, while it

is declared that neither of these shall avail the car-

rier in cases where the violation of a statute has

contributed to the injury or death of the employee,

there is, with respect to cases not in this category,

a limitation upon the effect that is to be given to

contributory negligence, while no corresponding limi-

tation is imposed upon the defense of assumption of

rick—-perhaps none was deemed feasible.”

The Safety Appliance Act of April 14, 1910, upon which

the respondent in the case at bar bases his action, is

enumerated in the above quotation as “id. 913, chap. 103,”

that is 36 Statutes at Large. page 913, chapter 103. The

decision of this Court in Seaboard Air Line Railroad Co.

v. Horton, has never been overruled and has been cited

as authority in many cases, as recently as twice in 305

U. S. at page 2 and page 3. It is the law of the land

which controls and should be applied in the case at bar.

The Federal Locomotive Boiler Inspection Act (Act of

February 17, 1911, Chap. 103, 36 Stat. at L. 913, 45 U. S.

Code sections 22 to 34) is a Safety Appliance Act as this

court stated in Great Northern Railway Co. v. Leonidas,

305 U. S. 1, 2.

The Horton case is cited by the Court in Southern

Ry. Co. v. Gray, 241 U. S. 333, a suit under the Federal

Employers’ Liability Act, and the Court, at page 339, says,

“Negligence by the railway company is essential to a

recovery * * *.”

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Since the ruling of this court in seaboard Air Line Rail-

way Co. v. Horton, 233 U. S. 492, in 1914, the Congress

has been in session many times and for many years, but it

has not made any change in the provisions of the Federal

Employers’ Liability Act or the Safety Appliance Act of

April 14, 1910, as those acts were interpreted by this court

in that case. This “amounts to a confirmation” of the

judicial interpretation placed upon the acts by this court

in that case. McFeely v. Commissioner of Internal Reve-

nue, 296 U. S. 102, 108.

In Jacobs v. Southern Ry. Co., 241 U. S. 229, the Court,

at page 235, in considering the Federal Employers’ Liability

Act in a suit by a fireman injured in attempting to get on

an engine, says, “It is clear, therefore, that the assumption

of risk as a defense is abolished only where the negligence

of the carrier is in violation of some statute enacted for

the safety of employees. In other cases, therefore, it is

retained. And such is the ruling in the Horton case

(Seaboard Air Line R. Co. v. Horton, 233 U. S. 492), made

upon due consideration and analysis of the statute and

those to which it referred.” (Emphasis added. )

In Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497,

the Court at page 509 quotes the provision of the Federal!

Employers’ Liability Act imposing a liability for injury

to an employee “resulting in whole or in part “ * * by

reason of any defect or insufficiency due to its negligence

in its cars * * *.” The Court at page 510 says, “As was

held in San Antonio & A. Pass. R. Co. v. Wagner, 241

U. S. 476, a violation of the safety appliance act is ‘negli-

gence’ within the meaning of the liability act.”

In St. Louis-San Francisco Railway Co. v. Mills, 271

U. S. 344, the plaintiff, respondent, sued to recover under

the Federal Employers’ Liability Act. The Court at page

a -

347 says: “The burden of proving negligence rested upon

the respondent.”

At page 348, the Court says: “The evidence must at

least point to the essential fact which the jury is required

to find in order to sustain the verdict.”

In Atlantic Coast Line Rd. Co. v. Burnette, 230 U. S.

199, the plaintiff commenced suit on January 7, 1910, for

injuries received while employed by the defendant rail-

road in interstate commerce on October 5, 1907, the Su-

preme Court of North Carolina held that the railroad

company could not rely on the limitation of two years

in the Federal Employers Liability Act because of “want

of a plea setting it up.”

This Court reversed the judgment of the State Supreme

Court and at page 200 said:

“It would seem a miscarriage of justice if the

plaintiff should recover upon a statute that did not

govern the case, in a suit that the same act declared

too late to be maintained. A right may be waived or

lost by a failure to assert it at the proper time (citing

case); but when a party has meant to insist on all

the right it might have, such a result would be

unusual and extreme.”

The Court, at page 201, also said:

“In dealing with the enactments of a paramount

authority, such as Congress is, within its sphere,

over the states, we are not to be curious in nomen-

clature if Congress has made its will plain, nor to

allow substantive rights to be impaired under the

name of procedure (citing case). But, irrespective of

the fact that the act of Congress is paramount, when

i Sey eee |

PS BATES GRAN MEA YE MAP ERE TEN BHC aT ENED AE ee ONC RIEERS SAI — — Ba

a law that is relied on as a source of an obligation

in tort sets a limit to the existence of what it creates,

other jurisdictions naturally have been disinclined

to press the obligation farther (citing cases). There

may be especial reasons for regarding such obliga-

tions imposed upon railroads by the statutes of the

United States as so limited (citing cases). At all

events the act of Congress creates the only obliga-

tion that has existed since its enactment in a case

like this, whatever similar ones formerly may have

been found under local law emanating from a differ-

ent source (citing cases). If it be available in a state

court to found a right, and the record shows a lapse

of time after which the act says that no action shall

be maintained, the action must fail in the courts of

a state as in those of the United States.”

The Court of Appeals in the Spotts case (102 F. |2d|

160) cites Philadelphia & R. R. Co. v. Auchenbach, 16

F. (2d) 550, in suppert of the point on which the Spotts

case was decided and on which respondent in the case

at bar relies, namely, “The test in fact is the perform-

ance of the appliance.” In the Auchenbach case the plain-

tiff alleged and the case was submitted on the charge

that the railroad company was negligent in violating the

Safety Appliance Act relating to automatic couplers. The

Circuit Court of Appeals (16 F. [2d], page 552) said:

“The defendant’s negligence, if any, consisted in

violating a duty imposed by statute. The statute

made it obligatory upon the defendant to equip its

cars with safety appliances of a kind defined by their

operation, namely, couplers that will couple auto-

matically by impact. That duty is absolute and un-

qualified and contemplates the maintenance of such

appliances in working condition ‘at all times’ (citing

case). The test of the observance of this duty is the

performance of the appliances.” (Emphasis ours.)

a eee

39 Ne ae

The Court of Appeals then, in quotations, says:

“The failure of a coupler to work at any time sus-

tains a charge that the Act has been violated.”

The Court (page 552) then cites five cases decided by

this Court to support its conclusions, none of which in-

volved the use of hand brakes.

In St. Louis I. M. & S. R. Co. v. Taylor, 210 U. S.

281, the Court said:

“The right to recover for the death was based

solely on the failure to equip the two cars which

were to be coupled with such drawbars as were

required by the act of Congress known as the safety

appliance law. 27 Stat. at L. 531, Chap. 196.”

That law was the automatic coupler law, passed March

2, 1893, which required that cars be “equipped with

couplers coupling automatically by impact, and which

can be uncoupled without the necessity of men going

between the ends of the cars.”

The case of Chicago, B. & Q. R. Co. v. United States,

220 U. S. 559, was a suit foy penalty under the Act of

March 2, 1893, and the Act of March 2, 1903, for using

cars not equipped with air brakes. This Court quoted

with approval the ruling of the trial court that the carrier

was liable, “provided the accident occurs from a defec-

tive appliance such as is described in this act.”

This court also quoted from the opinion of the Circuit

Court of Appeals as follows:

“The cause is simplified by the concession of

counsel for the railway company that there was

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evidence tending to prove the defective condition of

each of the four cars.”

The Court of Appeals cited the Taylor case (210 U. S.

281) on the point that under the statute there in question

the duty was an absolute one “and not one which is dis-

charged by the exercise of reasonable care or diligence.”

That statute is the same one, which requires automatic

couplers, and the Court bases its decision on the provisions

of that Act. (Act of March 2, 1893.) The Court (220

U. S. 1. e. 571-575) cites, quotes and follows the Taylor

case.

In San Antonio & Arkansas R. Co. v. Wagner, 241 U. S.

476, plaintiff sued for injuries received in coupling cars,

charging that the “couplers would not couple automatically

by impact, as required by law,” the Act of March 2, 1893,

as amended by the Act of March 2, 1903.

In Chicago, R. I. & P. Ry. Co. v. Brown, 229 U. S. 317,

the suit was for injuries received under the automatic

coupler law.

In Minneapolis & St. L. R. Co. v. Gotschall, 244 U. S.

66, the suit was under the automatic coupler law and the

petition alleged negligence of defendant. The jury, under

an instruction of the Court, was permitted to infer negli-

gence on the part of the company from the fact that the

coupler failed to perform its function, there being no other

proof of negligence.” Citing the Taylor case.

This Court in Chicago, M. & St. P. R. Co. v. Coogan,

271 U. S. 472, an action for damages under the Federal

Employers’ Liability Act, said:

“At the close of all the evidence, petitioner moved

the Court to direct a verdict in its favor on the

ground, among others, that respondent had failed to

prove any actionable negligence on the part of peti-

tioner, and that any verdict for respondent would be

based upon speculation and conjecture.”

“Judgment for respondent was given by the trial

court, and, on appeal, it was affirmed in the highest

court of the state, 160 Minn. 411, 200 N. W. 477. The

case is here on writ of certiorari. Judicial Code, sec.

237.”

“Petitioner contends that the evidence is not suffi-

cient to sustain a finding that any negligence on its

part cause or contributed to cause the death.”

On page +74, the Court says:

“By the Federal Employers’ Liability Act, Con-

gress took possession of the field of employers’ lia-

bility to employees in interstate transportation by

rail; and all state laws upon that subject were super-

ceded. (Citing cases.) The rights and obligations of

the petitioner depend upon that act and applicable

principles of common law as interpreted by the Fed-

eral courts. The employer is liable for injury or death

resulting in whole or in part from the negligence

specified in the act; and proof of such negligence is

essential to recovery. The kind or amount of evidence

required to establish it is not subject to the control

of the several states. This Court will examine the

record, and if it is found as a matter of law, the

evidence is not sufficient to sustain a finding that the

carrier’s negligence was a cause of the death, judg-

ment against the carrier will be reversed.” (Citing

cases.)

In Atchison, Topeka & Santa Fe Ry. Co. v. Scarlett, 300

U. S. 471, which cited and relied on by the Court in the

Spotts case (102 F. [2d] 1. c. 163) says “Plaintiff relies

omesven en |

er a ret eile IOI SM MR AEN Be OE PMN LEE AONE Re UO OLN PANTS TS ob Ts

on,” the plaintiff “alleged that the injury was due to the

negligence of the railway company.” At the trial plain-

tiff abandoned his claim based upon negligence in having

a brace rod on the side of a car adjacent to the side ladder,

and “put his case wholly on the ground that the round

diagonal brace rod and the ladder combined to constitute

an unsafe appliance within the meaning of the act, and

that, in consequence, the liability of the railway company

was absolute.” This court held that there was no violation

of the act relating to hand holds and side ladders.

That the decision in the Spotts case is based upon deci-

sions in cases under the automatic coupler law is shown

not only by the fact that the cases which that court cited

and relied upon arose under the coupler law, but the Court

clearly shows that it was following the ruling in auto-

matic coupler cases for at page 162 of 102 (2d), it says:

“Proof of an actual break or visible defect in a

coupling appliance is not a prerequisite to a finding

that the statute has been violated.” (Emphasis added.)

The case of St. Louis I. M. & S. R. Co. v. Taylor, 210

U. S. 281, cited as an authority for the decision in the

Spotts case, and the basis for the rulings in the state and

lower federal court cases cited and relied upon by re-

spondent, was argued and submitted on April 14, 1908,

two years before the hand brake law was enacted on

April 14, 1910, and was for injuries alleged to have resulted

from a failure to have a car equipped with a proper dra\

bar, a violation of the automatic coupler act.

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The respondent apparently would have the Court believe

that the petitioners (defendants) adopted and accepted

the theory of the respondent (plaintiff) that he was

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SARL GAIT. OC NT ME NEE St PRN USA EIR NEN HAS A

entitled to recover even though the brake was not defec-

tive. (Respondent’s Brief in Opposition, pp. 6, 7.)

The record presented with the petition for the writ (pp.

8, 9) shows that the petitioners (defendants) at the very

commencement of the trial on the voir dire examination

of the jury, contended that they were not liable if the

jury did not find the injury was caused by a defect in

the brake. The respondent (plaintiff) objected to that

statement and contended he was not required to prove

any defect, but simply that the brake “didn’t operate”

(R. 8, 9). The trial court sustained the plaintiff's objec-

tion and contention and the defendants had no alternative

but to conform their defense to the rulings of the Court.

The respondent in his brief inadvertently overlooked this

important incident and ruling at the trial.

The position and contention of the respondent (plain-

tiff) and the theory of the lower court on which the case

was tried is shown by the opening statement of counsel

for plaintiff (R. 14) where counsel said: “We don’t attempt

to show and there will be no attempt to show in this case

that the company is guilty of negligence.”

The plaintiff's petition (R. 2, 3, 4) did not charge that

there was any negligence on the part of the defendants

(petitioners) and they objected at the outset to the intro-

duction of any evidence for the reason that the petition

“fails to state facts sufficient to constitute a cause of

action.” (R. 22.) The Court overruled the objection and

the defendants excepted. (R. 22.)

At the close of plaintiff's evidence (R. 112, 113) the de-

fendants requested the Court to instruct the jury that

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under the pleadings and the evidence the plaintiff was

not entitled to recover. The Court refused to give this

instruction and the defendants excepted. (R. 113.)

At the close of all the evidence (R. 310, 311) the de-

fendants (petitioners) again requested the Court to in-

struct the jury that under the pleadings and the evidence

the plaintiff was not entitled to recover, which instruction

the Court refused to give and the defendants saved their

exceptions. (R. 311.)

The rule is so well established as not to require citation

of cases that when a court has ruled adversely to the con-

tention of one of the parties, he does not waive his objec-

tion or adopt the adversary’s theory by making the best

defense he can under the adverse ruling of the Court or

by submitting the converse of the theory upon which the

other party submits his case.

The respondent contends that the decision of the state

court is not in conflict with the latest decision of a Fed-

eral court on the proper interpretation and applica-

tion of the Safety Appliance Act of April 14, 1910, and

bases this contention on two grounds. One is that the

decision in Grand Trunk Western R. Co. v. Holstein,

6 Cir., 67 F. (2d) 780, is based upon a discrepancy be-

tween a statement made by the injured employee and

his testimony at the trial. The other ground is that the

Holstein case is not the latest decision on that question

for the reason that the Seventh Circuit Court of Appeals

in the more recent case of Spotts v. Baltimore & Ohio

R. Co., 102 F. (2d) 160, has decided the question in a way

— a RIES DOF LE NN TOR OR I mr * re tad

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different from the decision of the Sixth Circuit Court of

Appeals in the Holstein case, 67 F. (2d) 780.

The respondent seeks to distinguish and discount the

decision in Grand Trunk R. Co. v. Holstein, 67 F. (2d)

780, by saying that the decision is based upon and jus-

tified by a discrepancy between a statement made by the

employee Holstein soon after his injury and his testi-

mony on the trial.

The record in this case (R. 102, 103, 104) shows that

the respondent in this case made a statement soon after

his injury which is as much at variance with the evi-

dence as to the admitted physical facts as was the situa-

tion in the Holstein case, and if the decision in that case

reversing the judgment is based upon that variation, as

the respondent here contends it was and ought to have

been, then it would seem that the judgment in this case

ought to be reversed. In the statement of respondent

made March 3, 1938, within two weeks after the injury,

he said (R. 103, 104): ‘

“Either the ratchet came above the dog (pawl) or

the dog (pawl) came above the ratchet, at least it

did not hold.”

With the testimony of the plaintiff describing the hand

brake equipment as he did at the trial (R. 27, 28, 29, 85,

86), and the statement in respondent’s brief (page 3), that

the photograph of the car taken the morning after the

injury and offered in evidence as Defendants’ Exhibit 10

(R. 125) clearly illustrates the hand brake and the de-

scription in the brief of the brake equipment, it seems

quite apparent that there was as great variation between

plaintiff’s statement and his testimony in this case as

INLET DG CS NETO NAL PE BRIE DRE

Care

there was in the Holstein, We wish to say, however, that

we do not concede that the decision in that case was

based upon such variation. The decision was clearly based

upon a failure to prove that the brake was defective.

The difference between this case and the case of Spotts

v. Baltimore & Ohio, 102 F. (2d) 160, on which the re-

spondent relies, is vital in several particulars. In that

case, as the Court says, the complaint charged that “de-

fendant negligently failed to equip properly a certain

car with an efficient brake wheel and brake staff, con-

trary to the provisions of the Safety Appliance Act,

negligently provided a brake staff and wheel which fell

4 to one side, when plaintiff attempted same, and permitted

4 the brake to be and remain in a defective and unsafe

: condition contrary to the provisions of the Safety Appli-

: ance Act.”

In this case respondent contended and the state court

d ruled that plaintiff was not required to allege or prove

i that defendants were negligent or that the brake was

a defective.

In that case, the plaintiff did not allege a right to

4 recover under the Federal Employers’ Liability Act. In

5 this case the plaintiff expressly based his right to recover

under the provisions of the Federal Employers’ Liability

Act (R. 3), and he could not maintain an action in the

courts of Missouri without basing his right to recover

upon the Federal Employers’ Liability Act.

eee ts

The opinion in the Spotts case shows that the Circuit

Court of Appeals based its decision upon the rule applied

in cases arising under the automatic coupler law, for the

Court in that case at page 162 of 102 F. (2d) says:

“Proof of an actual break or visible defect in a

coupling appliance is not a prerequisite to a finding

that the statute has been violated.” (Emphasis ours.)

The decision of that Court in that case is certainly not

binding on this Court in considering whether the deci-

sion of the state court should be reviewed on writ of

certiorari.

The Court of Appeals in the Spotts case cited and fol-

lowed the case of Didinger v. Pennsylvania R. Co., 39

i. (2d) 798, but overlooked the later case of Grand Trunk

W. R. Co. v. Holstein, 67 F. (2d) 780, which should have

been followed in the Spotts case because it was the latest

decision of any Federal court.

Even a casual reading of the opinion in the Spotts case

shows that it wholly fails to distinguish between the

Automatic Coupler Act of March 2, 1893, which requires

that cars be equipped with couplers coupling automati-

cally by impact and operate mechanically and without

the aid or use of manual energy, and was enacted for the

express purpose of preventing human effort and inter-

vention, and the hand brake law of April 14, 1910, which

requires that cars be equipped with hand brakes, which

can only be operated and made effective by manual effort

applied by men, who vary in energy, strength, alertness

and intelligence, no two of whom possess in equal degree

these personal qualities and qualifications. It was because

of the knowledge which Congress had of the variation

in these qualities and qualifications which different men

possess, and the knowledge that the efficient operation

of hand brakes depended upon the possession and exer-

cise of these qualities and qualifications by the vast num-

Rg aes

are

“S

Fi]

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ber of individuals employed as switchmen and brakemen

on the hundreds of railroads in this country, that caused

Congress to express in the hand brake law, as it did not

express in the automatic coupler law, the intention that

the hand brake law should only apply where and when

the equipment was defective. This understanding and

intention is expressed in five places in one section and

once in another section of the act, whereas the automatic

coupler law dealing only with mechanical equipment not

requiring the intervention of human agency and energy

to make it effective, makes no mention of or reference to

defective or out of repair condition of the lifeless mate-

rials which constitute automatic couplers and can cause

them to couple automatically by impact wholly without

the use of human energy, strength, alertness and intelli-

gence, the essential human elements necessary in the

efficient operation of hand brakes.

In considering whether the Court ought to review the

record and consider the case on its merits in order to

determine whether the judgment of the State Court

should stand, it seems pertinent and important to call

attention to some of the facts which shed a very definite

light on the question whether plaintiff proved that the

brake was either defective or inefficient.

The accident was at night. It was raining and sleeting

(R. 27, 87, 104). The brake platform and the brake appli-

ances were wet. Plaintiff had rubbers on his feet and

chamois skin gloves or mittens on his hands. He was

tightening the brake on the car by turning the brake

wheel from left to right. He had tightened the brake

until he had taken the slack out of the brake chain and

had tension of the brake shoes against the car wheels.

He was making an effort to check the movement of the

£9

car by applying his strength to the brake wheel to over-

come the momentum of the car moving down grade to

the south and the force of the locomotive and twelve

cars it was pushing against the L. & N. car 12670. To

apply his strength to the brake wheel to turn it from

left to right or clockwise, he naturally had to brace him-

self to his left and against his left foot.

We trust and believe that we do not reflect upon the

decisions of the courts, we certainly do not intend to, when

we say that we believe the courts in their decisions have

entirely overlooked the difference between the provisions

of the Automatic Coupler Law and the provisions of the

Hand Brake Law and have wholly overlooked the reason

and purpose Congress had in making a difference in the

provisions of these two laws, and the reasons why the

courts should make a distinction in the interpretation and

application of the two laws.

The petitioners fully realize that in passing upon and

granting a petition for a writ of certiorar‘, the Court is

not determining the questions which are made the grounds

for the petition, and they do not mean to present this

question now to the Court as for a final determination,

but they do believe that this question is such as to fully

warrant the Court in exercising its power of review in

order that these clear distinctions in the two laws and the

clear reason for the distinction may be considered and

determined by the Court, as we believe has never yet been

done, and as respondent’s counsel conceded when at page

15 of their brief they say:

“We frankly concede our inability to find any

decision of this court which passes directly upon

this aspect of the provisions of the act and of the

order of the Commission relating to ‘efficient hand

brakes’.”

7 Meet 2 2 Now Kite SOG Pt SOREN RTE OBR GALLEN BANE ORIOL LL |S TOYS INL LATTES OU NTE IED RE AL ELLIE IS RAEI ISS BA GORI ee

Sets

SAO DA IV ARI, AUDA EL i

Although the petitioners here seek a review of the

decision of a state court, and not a review of a decision

of a Circuit Court of Appeals in conflict with the deci-

sion of another Circuit Court of Appeals, yet as re-

spondent contends that the decision of the state court

is in harmony with the decision of the Seventh Circuit

Court of Appeals in Spotts v. Baltimore & Ohio R. Co.,

102 F. (2d) 160, and that that case is in conflict with the

decision of the Sixth Circuit Court of Appeals in Grand

Trunk R. Co. v. Holstein, 67 F. (2d) 780, it would seem

that the Court in the exercise of sound judicial dis-

cretion might very properly grant the petition and re-

view the decision of the state court in order that the

important federal questions involved in that decision

and in the conflicting decisions of the circuit courts of

appeals of the Sixth Circuit and the Seventh Circuit

may be definitely and finally settled by the decision of

this Court in this case. This is an important question

of federal law which has not been, but should be, settled

by this court and it would seem to call for the exercise

of this Court’s power of supervision within the meaning

of the Rules relating to review on writs of certiorari.

ae RDR NS Pi 2 Sst VRE RR ERE BEERS

Respectfully submitted,

NAT S. BROWN,

HOMER HALL,

Counsel for Petitioners.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.