# Appendix — Pitcairn v. Wild > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_0617%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1941 - **Citation:** 314 U.S. 638 ## Text - ( r CLA RETR sree — aes eer er ICR: | 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 7 it 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 eae Mei: ke ae 4 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 _ 2 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! Bape Broan > 1 wou 9 APNE TE Erp REIN RPE OE . , : 3 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 5 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 6 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- 7 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. ——. 8 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- ae Beene 10 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 — eg AS: > 11 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 12 ~ 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 13 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. 14 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 15 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, 16 “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 ol 17 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 18 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 z & & * ae EE ee En ee r > a a ‘d a z = 44 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. V. 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 fe? 45 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 46 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: 47 “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 wy % “S Hi ce Fi] DES TES TL 48 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 a a t4 - 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. 50 ae RDR NS Pi 2 Sst VRE RR ERE BEERS Respectfully submitted, NAT S. BROWN, HOMER HALL, Counsel for Petitioners. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43086415_0617%3A4. Public record. Not legal advice.