Shenker v. Baltimore & Ohio Railroad Company

PETITIONER:Shenker
RESPONDENT:Baltimore & Ohio Railroad Company
LOCATION:Clauson’s Inn

DOCKET NO.: 414
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 374 US 1 (1963)
ARGUED: Apr 17, 1963
DECIDED: Jun 10, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – April 17, 1963 in Shenker v. Baltimore & Ohio Railroad Company

Earl Warren:

Number 414, Michael Shenker, petitioner, versus Baltimore and Ohio Railroad Company.

Mr. Wright, you may proceed.

Charles Alan Wright:

Mr. Chief Justice, may it please the Court.

This is an F. E. L. A. case in which the Court of Appeals for the Third Circuit reversed a judgment for the injured employee.

It raises two questions; one, a question of federal appellate procedure, the other question of law as to the scope of the duty of the carrier under the Federal Employers’ Liability Act.

Since the two questions are independent, I should like to express my view on the procedural question before stating the facts which go to the merits and to the rule of law involved.

In the Third Circuit, the judgment for the employee was reversed by vote of 2 to 1.

Judge Goodrich and Judge Ganey with the majority and Judge Kalodner dissented.

A petition for rehearing en banc was filed.

The petition for rehearing en banc comes not under Rule 33 of the Third Circuit as respondent suggests in his brief and under Rule 4 (c) of the Third Circuit which deals with their en banc procedure.

The petition was ruled denied per Goodrich and Ganey J. with four justices dissenting from the denial of rehearing, Judge Kalodner, Judge Biggs, Judge Smith and Judge Staley.

Judges Hasty and McLaughlin of the Third Circuit did not participate in ruling on the motion for rehearing.

And so as the matter stood, the vote was 4 to 2 in favor of granting rehearing but the statute, Section 46 (c) of the Judicial Code provides that rehearing en banc maybe ordered by a majority of the Circuit judges in active service.

And since there were eight judges in active service on the court at that time, the court considered that the petition for rehearing had failed to attain the necessary majority and therefore it ruled that the petition was denied.

Potter Stewart:

Is there indication as to why two of the judges did not participate?

Charles Alan Wright:

There’s no indication whatever, Justice Stewart.

We concede that the — a literal reading of the statute supports what was done below.

It is true that there was not a majority of the Circuit judges in active service who voted to grant the petition.

We suggest, however, that this is a statute which had never been read literally either by this Court or any other court and it is a statute which read literally in this context, produces an absurd result.

It produces the result that one loses though two-thirds of the judges who vote on the matter who voted in one’s favor.

I have endeavored, I must say without success to formulate some principle of one-judge-one-vote which might applicable to the case.

I do suggest, however, that the principle of majority rule is not a principle confined to southern primaries, but it’s one which the federal courts have always followed.

I will not say that what happened below is unprecedented because there may always be a precedent which has been overlooked, but so far as I can find in following the work of the federal courts, I cannot recall any case in which a majority of the sitting judges have been held to not to have their way on a matter before the Court.

The closest case I can think of in point as the case here of In re Isserman in which in order to show cause why Isserman should not be disbarred was served upon him.

The Court divided 4 to 4 as to whether he had shown cause and this Court initially ruled that he’d failed to carry majority and he was disbarred.

But this Court then proceeded to change its rules to prevent such a result and on rehearing, permitted Isserman to remain a member of the bar.

This Court when it first construed the en banc statute, Section 46 (c) indicated that a literal reading of the statute does not require, when it suggested specifically as a possible procedure which the Circuits might follow, that they might leave it to the original panel to decide whether or not a rehearing en banc should be called for.

If one does this, then two judges can order a rehearing en banc even though the statute says a majority of the judges in active service.

Now, if we can read the statute in a non-literal sense and permit the panel to decide, it is our view that we can also read the statute in a non-literal sense and permit those judges who participate to decide.

When six judges participate or don’t think rehearing should be granted that it would be entirely consistent with the purpose of the statute to order rehearing and in fact in my submission to deny rehearing on showing of this kind [Inaudible] the purpose of the statute.

Charles Alan Wright:

The statute we have been told is intended to make sure that a majority of the active judges may determine the major doctrinal trends for their Circuit.

Now this will not occur if — when half of the judges in the Court and a majority of those participated are unsatisfied with the decision or want to hear more about it before they let it stand, to sit the doctrinal trends for their Circuit, nevertheless the decision has to stand.

And it’s for those reasons that we think that the court below erred when it entered its order rehearing denied with a vote of 4 to 2 to grant rehearing, the order should have been, rehearing granted.

Potter Stewart:

Isn’t this a matter that the — if the judiciary was in the — within the internal housekeeping management of each Court of Appeals?

Charles Alan Wright:

Yes, Mr. Justice Stewart, it is that this Court has emphasized in Western Pacific case that the statute is addressed to the Court of Appeals.

Litigants may suggest the rehearing en banc but they get no vested rights from it.

At the same time, it seems to me that it is a matter of peculiar concern of the litigant when the resulting judgment comes, that the litigant is partly aggrieved by a judgment which we consider legally to be erroneous.

We do not believe that it is within the permissible discretion of the Court of Appeals for the Third Circuit to say that a minority should rule.

Potter Stewart:

Did it — this did follow the rule of the Third Circuit, didn’t it?

Charles Alan Wright:

It did.

The rule of the Third Circuit will foresee as — except for a slight verbal change identical with the statute.

Potter Stewart:

And it does as you began by saying follow the literal —

Charles Alan Wright:

The literal language?

I agree.

It requires the result.

Byron R. White:

Mr. Wright, what is [Inaudible] is rehearing allowed to be controlled by the pan — original panel?

Do you say there are some instances?

Charles Alan Wright:

Yes, Mr. Judge White.

Under Rule 33 if a petition for a rehearing to the original panel and it sits out a variety of circumstances under which the original panel might itself grant a rehearing —

Byron R. White:

The Rule 33 of what?

Charles Alan Wright:

The Third Circuit.

Those three judges could decide if they want to rehear the matter but they weren’t —

Byron R. White:

Yes, but just those three?

Charles Alan Wright:

Yes.

The —

William J. Brennan, Jr.:

Is there a counterpart of that rule in other Circuits, do you know Mr. Wright?

Charles Alan Wright:

Rule 33?

William J. Brennan, Jr.:

Yes.

Charles Alan Wright:

I would think so, Mr. Justice Brennan, yes.

Byron R. White:

But is this — is this the situation you were talking about when you said that if two out of the three of the original panel should — can be delegated the power to grant a rehearing so should the four out of —

Charles Alan Wright:

No, Mr. Justice White.

This is not the situation I’m talking about.

Under the Western Pacific case, what can be done and what in fact at least the Eighth Circuit has done is to provide that applications for rehearing en banc shall be considered by the original panel and if it votes for rehearing en banc, then the whole Court hears the case.

If it is denied then it’s denied.

The matter never goes to the whole court.

This is not the Third Circuit in effect.

Byron R. White:

Well, if it granted — that if — if it’s granted, it doesn’t go to the whole court?

Charles Alan Wright:

Yes, Your Honor.

On the merits of the case —

Potter Stewart:

What if — well —

Charles Alan Wright:

Yes.

Potter Stewart:

— just before we leave this, what — what if you’re right on this point, supposedly it wouldn’t reach the merits of the case, is that it?

Charles Alan Wright:

Yes, Mr. Justice Stewart that is it.

If I am right on this point and if the Court chooses to decide the case on this point, I would suppose the Court would remand to the Third Circuit to vote a rehearing.

I think however, it is within the power of this Court whether I’m right or wrong on the rehearing point to decide the case on the merits.

This is not a case where federalism intrudes and the state court must be given the first crack.

Here, this Court can do (Voice Overlap) —

Potter Stewart:

But then that means, I suppose that your first point, the point you’ve discussed up to now becomes to be theoretical?

Charles Alan Wright:

Well, that’s what happened in the Drake Bakeries case when it came here.

It came here both on the question of rehearing and on a difficult question on the merits.

The Court decided the case on the merits and in the footnotes that we do not pass on the question of rehearing that was presented.

On the merits, the petitioner was a baggage man with Baltimore and Ohio Railroad, employed at its station in New Castle, Pennsylvania.

At that point, the tracks of the Baltimore and Ohio and the tracks of the Pittsburgh and Lake Erie are adjacent.

The Pittsburgh and Lake Erie has no employees at that point.

It has a building but once a station, but as of the time when this accident occurred, Pittsburgh and Lake Erie passengers bought their tickets from the B&O ticket agent.

And B&O employees such as petitioner did what service was necessary for Pittsburgh and Lake Erie trains, including in this case, loading mail onto the train.

The petitioner was injured, a severe back injury requiring a laminectomy when a Pittsburgh and Lake Erie train, operating on Pittsburgh and Lake Erie tracks stopped, he endeavored to put the mail on, the door of the car would not open more than some 18 to 24 inches.

The sacks of mail are quite large, 31 by 37 inches and weighing up to 100 pounds and endeavoring to force these bags through the narrow opening, he injured his back.

There is, as I understand no dispute but that the car was defective in this regard and there was testimony that a P&LE employee had earlier reported the defect to the P&LE but that nothing had been done.

Arthur J. Goldberg:

Mr. Wright, [Inaudible]?

Charles Alan Wright:

That is correct, Mr. Justice Goldberg.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

That’s all we have.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

That is correct.

The only thing in addition which we have, the complaint alleged that the P&LE cars were serviced by the B&O under an arrangement between the railroads and this allegation was admitted.

But we do not know what the arrangement was in any respect and on our view of this case — the arrangement is entirely immaterial.

It wouldn’t matter whether there was a contract or no.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Oh, if petitioner had been a volunteer, yes it was, but petitioner clearly, the record shows petitioner was doing this under instructions from his B&O supervisors.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes.

This was part of the duties which his employer had required him to perform.

The Court — the majority of the Court of Appeals thought that this was a problem of agency of imputed negligence and it held that since the P&LE was not the agent of the B&O that there could be no imputation of any negligence at the P&LE to the B&O and therefore no recovery.

Now, I take it that the parties are aggrieved as I read the brief, but this is not a proper approach of the case.

At page 20 of his brief, respondent says that it wholeheartedly agrees with our formulation which states that there is no such agency issue or issue of imputed negligence here.

Our position is as simple.

We say we are concerned with negligence of the Pittsburgh and Lake Erie.

We are concerned only with negligence of the Baltimore and Ohio, petitioner’s employer.

And we believe that here the Baltimore and Ohio was negligent.

That it breached its duty to provide — reasonable care in providing a safe place to work.

Now, respondent agrees also with us and the cases here, Bailey v. Central Vermont and Ellis v. Union Pacific certainly required this that there is such a duty on the employer-carrier.

That the — even when the employee is sent to work on the cars or track or equipment of another line that the employer is still under a continuing non-delegable duty to exercise reasonable care to see that the employee has a safe place to work.

Thus far, we are on common ground.

Petitioner and respondent disagree however when we go beyond this to ask what this duty means in a concrete case.

Respondent analyzes cases and groups them and suggests that as a matter of law, the employer-carrier can be liable where the defect was not on his own premises.

Only if the employer had created the defect or had actual knowledge of the defect, or the defect was permanent or of such a long standing nature that he should have had knowledge.

This it seems to me is familiar and quite proper technique in case analysis that one can distinguish all the cases and find there has never been a case in which recovery has been allowed for a red-haired switchman killed in a head-on collision and clearly there can be no such recovery when that case arises.

Charles Alan Wright:

I’m going to suggest that the law of negligence is too supple and too vital to be thus departmental on this, but before I discuss what seems to me the applicable principle I should like to say a word about the precedents.

In order to develop the rule of law which respondent contends, it is necessary that they do some violence to the present, thus they are required to categorize a case in which the employee was injured because he fell in snow and ice as case of a permanent or long standing defect.

And to categorize similarly, a case in which a rainstorm, the night before had caused ashes to accumulate in an unhappy fashion which led to an accident, this they say are permanent or long standing defects.

At page 22 of their brief, they write off four of the precedents on the ground that these are cases like Sinkler v. Missouri Pacific, cases in which the third party was performing operational activities and therefore the negligence of the third party is to be imputed to the employer.

But this I suggest would come as a great surprise to the courts which decided there were four cases and three of them — there is not a word of operational activities or of imputed negligence.

And on the fourth, Mr. Hadden’s case of a Payne v. Baltimore and Ohio, imputed negligence was clearly put forward only as an alternative ground of decision.

Finally, in connection with precedence, the categorization which respondent makes requires a somewhat heavy handed treatment if I may say so of Harris v. Pennsylvania Railroad which is the only case from this Court which comes close to the facts of our case.

In the Harris case, Harris was a Pennsylvania Railroad employee.

He was a member of a wreck crew and was sent out to help derail some cars which had — to help re-rail some cars which have been derailed on the nickel plate.

In the course of doing so, he slipped because of grease, so it was said on a nickel plate tie.

There was no evidence in the record, whatever that the Pennsylvania Railroad or any employee of the Pennsylvania Railroad had any knowledge that the grease was there.

Nevertheless, it was held that there could be recovery.

Now in the trial court, Harris alleged four grounds of negligence.

But the jury found that Pennsylvania was negligent in only one ground, that there had been grease on the tie and this was not a reasonably safe place to work.

The Ohio Supreme Court announced that as a matter of Ohio procedure when the jury finds that a defendant is negligent on one ground and the same one as to others, this rejects the other grounds.

Because one of the other grounds had been that he can require to do this work, but then a Pennsylvania foreman in there and he said, “This is too hard a job for me” and the Pennsylvania foreman said, “You’re a big boy.”

This has been a ground of negligence but the jury hadn’t found it as such.

And the higher Supreme Court said, “We cannot consider this ground because the jury has impliedly rejected” and it also found insufficient evidence of grease and oil and reversed.

The case came here and in the petition for certiorari, the first question put forward on behalf of Paris was that the Ohio Special Interrogatory Practice deprives workers of the rights under F. E. L. A. and should not be applicable in F. E. L. A. cases.

The second point put forward was that there was evidence to support the finding, the foreman shouldn’t have made him do all this work.

And finally, the point was made that there was evidence to support that the grease on the tie count.

This Court reversing the Ohio Supreme Court reinstating the verdict, expressly rested its decision that on a holding that there was sufficient evidence to find the employer negligent because of the grease and oil in the nickel plate tie and this Court expressly also said, “We therefore do not consider the challenge to the Ohio Interrogatory Practice.”

So that the explanation of Harris which my learned friend gives that for basis of liability there was that there was Pennsylvania foreman who knew about this is not the basis which prevailed in this Court.

There’s no evidence that the Pennsylvania foreman knew about it.

And my view to the Harris case in fact goes further than we are asking the Court to go here because in Harris there was no evidence even, so far as I can tell, that the railroad might plan an inspection and discover the grease.

What happens — there was whether the section man inspected the next morning and found no grease.

Nevertheless, recovery was allowed in Harris.

Here, there is evidence that the defect had existed for some period of time sufficient for a court to have been made and most of this is not a new threat to safety but something which inspection by the Baltimore and Ohio would have disclosed.

Now, return from — Yes?

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

I would distinguish Mr. Justice Goldberg, between foreseeability and notice.

As I understand the law of negligence, foreseeability relates to whether the defendant could have foreseen that the condition which existed might give rise to injury if he had had all the facts about, notice is whether he had or recently should have had all the facts.

I don’t think there is any foreseeability problem here if the railroad had known that the door would not have opened, it could have foreseen that injury might result.

Potter Stewart:

Isn’t a test whether a reasonable man in the exercise of ordinary prudence would have foreseen rather than whether the defendant could have foreseen?

Charles Alan Wright:

Yes, I think so.

Potter Stewart:

I’m talking now about the foreseeability.

Charles Alan Wright:

Yes.

I do not find a foreseeability issue here.

I think there is perhaps a notice issue.

William J. Brennan, Jr.:

Mr. Wright, you said earlier I thought at the outset of some complaint about this very door had been made to someone?

Charles Alan Wright:

Yes, sir they —

William J. Brennan, Jr.:

And it — why — what was that?

Charles Alan Wright:

The baggage man on the P&LE car — a P&LE employee said to Shenker just before he was injured that — I — that he had reported this defect to the railroad, but nothing had happened.

William J. Brennan, Jr.:

Meaning the P&LE?

Charles Alan Wright:

Yes, to the P&LE.

And the principle which I suggest should be governing in these cases is that the duty of the employer, one whose employee is working on the premises of some third party is exactly the same as his duty when the employee is working on home rails.

That if the employer would be liable, that the injury had occurred on a B&O train or a B&O car then the employer is also liable when he requires his employee to go out and service a P&LE car.

This is what the jury was charged as I understand it in this case and neither side objects the charge and both sides have said that the charge was an act or statement of the law.

Potter Stewart:

Well, you’d have an entirely different case if it’s been a B&O car because then the defect in the door would have been the responsibility — it would’ve resulted from the negligence of the B&O, the employer.

Charles Alan Wright:

Well, I don’t think that’s necessarily so, Mr. Justice Stewart.

The — it would be a clearer case that the B&O should have found out the defect that the defect might have occurred for any cause, the defect may very well occur without the negligence of anyone.

The negligence comes in failing to find the defect, do something about it, warn the employee against the dangers.

Potter Stewart:

Well, the B&O car would have been within the exclusive control of the employer, the defendant in this case where the P&LE car that — this is just not the case, isn’t that true?

Charles Alan Wright:

Of course it’s not the case and they — the principle for which I contend is that the employer-carrier, if it’s going to send its employees to work on other lines, has to exercise the same precaution.

B&O cars presumably are routinely inspected by the B&O.

If it’s going to send its man over to work on a P&LE car then I suggest that it is under a duty by inspection or otherwise to make sure that it is not exposing its employee to undue risk.

And this, I think is fully supported by the cases — I agree that the cases are not from this Court.

There is a substantial body of case law from the state courts and from the Court of Appeals cited in our brief that there is a duty on an employer who sends his employee elsewhere to inspect, he must inspect the tracks or the equipment or whatever it is, plans to send the employee off to work.

And this I think is what was meant when the trial judge charged the jury, that the employer’s duty was to furnish employees with reasonably safe course, appliances, and equipment regardless of who owns them and where they might be located.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

The instructions are not in the printed transcript, Mr. Justice Goldberg for the reason which counsel for respondent explained at page 20 of his brief.

Neither side accepted the instructions.

They therefore were not a part of the printed record in either the court below or here.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

No.

Both sides agree that the case was adequately submitted in the instructions.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

I’m embarrassed sir to say that I do not have the copy myself.

The clerk for the Third Circuit, Ms. Crescoff, when I requested a copy said that she would make a copy available only on order from this Court.

So the Court can get them and the counsel can’t.

Now, if the principle for which I have contended is sound then it seems to me that we have no difficulty in applying it in this case.

If the Baltimore and Ohio exercise reasonable care to see that Shenker was not required to work in an unsafe place, the answer as the record shows is that Baltimore and Ohio did nothing.

In fact, this is the principal argument which the railroad makes as to why it should be exonerated from liability.

It’s said, “We had no one there to make an inspection with nobody around except Shenker.”

And that is exactly what the railroad did or failed to do which is enough to impose liability on them, that the railroad took no precaution whatever.

It had no way of knowing whether or not the cars that Shenker was required to service are going to be safe or whether they’re going to be lethally dangerous.

It took no step to protect the safety of its employee and the jury therefore quite properly found, I suggest, that the railroad was liable.

William J. Brennan, Jr.:

Apart from that Mr. Wright, have you said as I understand you to say, you did not think this fellow was in the Sinkler line of authority?

Charles Alan Wright:

I do not, Mr. Justice Brennan.

William J. Brennan, Jr.:

Would you mind saying why?

Charles Alan Wright:

I think that if a P&LE employee had been injured here because of some defect and the mail truck perhaps of the B&O then we would have Sinkler type case.

But here, the B&O was performing activities for the benefit of the P&LE and that was the situation in Sinkler, where the Belt Terminal was doing the switching for the Missouri Pacific.

But I think that this is the exact reverse of the Sinkler case.

I think the Sinkler principle is of vital importance here.

It seems to me that as I understand the Sinkler case that the Court there gave what it called an accommodating scope to the word agents in the Act in ordered to assure — ensure that a railroad cannot escape its duties under the Acts simply by hiring somebody else, probably an independent contractor to do part of its work.

And what we are contending for here is that a railroad should not be able to escape its duties under the Act by sending its employees to go work another railroad.

William J. Brennan, Jr.:

In other words, you’re — what you’re saying here is P&LE is in the position of the employer on that case?

Charles Alan Wright:

Yes.

William J. Brennan, Jr.:

And Baltimore is in the position of the Belt line?

Charles Alan Wright:

Yes.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

Yes, I believe so, Your Honor.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

No.

Arthur J. Goldberg:

[Inaudible]

Charles Alan Wright:

I cannot believe so.

Earl Warren:

Mr. Hadden.

Alexander H. Hadden:

May it please the Court, Mr. Chief Justice.

I should like at the outset to address a word or two to the rehearing, the alleged rehearing issue in this case and then I shall try to do as my opponent did to the secondly more important issue that of the merits of the case.

To summarize the petitioner’s position on the rehearing issue, it is in a nutshell list that notwithstanding the express statutory language which makes the ordering of rehearings dependent upon the affirmative vote of a majority of the full bench of the Third Circuit Court of Appeals, notwithstanding that requirement and in the light only of the fact that four out of the — a total of eight justices or judges rather of the Third Circuit voted in favor of the rehearing en banc in this case.

But on those facts not only was it not within the discretion of the Third Circuit Court of Appeals to deny rehearing but that it was an abuse of discretion to deny it and that on the vote — on the favorable vote of a 4 to 2 majority, a rehearing should have been ordered.

My opponent points to the Western Pacific case as authority for a non-literal interpretation of the language of Section 46 (c) and he says that under 46 — under the Western Pacific case for example, it is — it has been held that the majority of the Court of Appeals may delegate to the original three-man panel, the power to initiate the en banc procedure.

Well, under the rules of the Third Circuit that is — that — the rule of the Third Circuit which is applicable here which he now points so is Rule 4 (c) of the Third Circuit expresses the rule of the Third Circuit in accordance with the — almost verbatim language of the statute.

It imposes upon the panel or rather the full consist of the Third Circuit, the responsibility to initiate en banc rehearings.

But he — what my opponent fails to relate to the Court, however, is that the Western Pacific case did something in addition to authorizing the delegation of the power to the original three-man panel.

It in effect reposed upon the Courts of Appeals a very large discretion to fashion their own rules on the en banc hearing procedures in accordance with whatever reasonable procedures they might find convenient and it laid down the requirement only that once such procedures, such convenient and reasonable procedures have been adopted that they be expressed in a rule so that the mentioned bar — the litigants as well know what the rule is, so that they can avail themselves of the procedure.

My point is this that the Third Circuit has exercised its discretion as authorized to it under the Western Pacific case by following the statute literally.

This Court has in a recent decision, the American Foreign Steamship Company case, a 1960 decision praised and I think an opinion by Justice Stewart praised the thorough machinery, administrative machinery worked out by the Court of Appeals and has held in fact that this is one of the Circuits where the procedure is best worked out and best known because of certain articles written by some of the judges.

Arthur J. Goldberg:

Mr. Hadden —

Alexander H. Hadden:

Yes, sir?

Arthur J. Goldberg:

[Inaudible]

Alexander H. Hadden:

That’s as I understand it, yes sir.

They say that it must be an absolute majority of the full court that this Court has expressly in Western Pacific’s case said that is an authorized procedure in the absence of full majority of the entire panel.

It’s our position that no rehearing would be appropriate in this situation.

William J. Brennan, Jr.:

Is your point of this form Mr. Hadden that even if the majority meant — majority has even purported to nevertheless as a matter of internal administration, the Circuits are at liberty to give through majority the meaning they gave it here namely absolute majority of the total number of active judges?

Alexander H. Hadden:

My point does go that far, Your Honor.

And I would say further that in connection with the basic purpose of the statute and the en banc procedure itself that does serve a valuable — a valuable service in laying it rest the disputed questions as between perhaps raised panels of a given Circuit.

It, as my worthy opponent points out does establish for the Circuit, the major doctrinal trends of the future.

However, that purpose will not be served by ordering a rehearing to be held by something less than a full panel of bench.

One can conceive of a situation where if a six-judge panel out of a total of eight judges of that Circuit were to decide a case with two — two judges absent for reasons which is like the present case are unexplained that those two judges might later return.

Alexander H. Hadden:

These are likely to be cases which are close and controversial in any event and the result might later change and the — their earlier decision be set aside.

I would further say in connection with the rehearing aspect to this matter that the case had — this case has now been admitted by this Court for a decision on both questions as I would understand it, certiorari not having been limited to one question or the other.

I presume therefore, that the Court will reach and decide the questions so far as the merits of the case are concerned.

And if that is so, of course the question of rehearing becomes moot because any major doctrinal trends will have been established by this Court not only for the Third Circuit but for the entire country.

I pass now to the question of the merits and I’ll point out by way of preliminary in that connection that this case is not one of those many cases rising under the F. E. L. A. which involves nothing more than weighing of the evidence such as for example the case — Sebastian case decided this Monday.

This case is one where in effect the facts are almost stipulated because there’s so little dispute about them.

However, I think it is important that the Court have before it what the full facts are and I would like to supplement my brother’s presentation in that regard without, however, suggesting that anything he has said is inaccurate.

This accident took place at the New Castle Station of the Baltimore and Ohio Railroad Company.

It is a station comprised of a building, with a waiting room, restaurants, ticket office where both B&O and P&LE tickets were sold, a baggage room, all of these in one building lying to the north of all the tracks.

Then as we read to the right or to the south rather there were two Baltimore and Ohio tracks, eastbound, westbound separated by a platform.

There was a fence separating the premises of the B&O from the P&LE.

The fence had a gate in it and there was a crossing, planked in crossing by means of which the wheel — four-wheel push truck which the plaintiff — petitioner was operating at the time that these arose could be pushed from the B&O premises over to the P&LE.

The duties of the petitioner generally speaking, it was without dispute — without substantial dispute that he was in the general employ of the B&O.

He was paid at least in the first instance by the B&O.

He was told what to do by the B&O ticket agent who was in — who was placed of — whose office was in the B&O station.

The record as Mr. Justice Goldberg has pointed out is substantial void however, with regard to any further details of the relationship of the two railroads one to the other.

William J. Brennan, Jr.:

But that he did work at the station itself, I gather that’s —

Alexander H. Hadden:

Yes.

William J. Brennan, Jr.:

His full-time employment was at the station?

Alexander H. Hadden:

That’s correct.

Except through — to limited extent, he was also had some duties as a caller and in that discharge of those duties he would go around the town of New Castle and call B&O employees for duties.

I think the record, however, admits what is substantially and un-contradictable inference and that is that so far as petitioner’s duties involved the P&LE Railroad, servicing its trains, it can hardly be contradicted that the petitioner necessarily had to depend ultimately at least for his instructions on the P&LE because the P&LE was the only one who had power to schedule its trains.

It was the one who therefore of necessity told by whatever circuitous means directed the petitioner to load and unload that the trains that came in on the P&LE tracks.

Arthur J. Goldberg:

[Inaudible]

Alexander H. Hadden:

Well, that can be hypothesis, Your Honor but I assume that there probably would be telephone calls from the P&LE to the B&O station agent who would then relay them to petitioner and say, “Please go and load train X.”

Arthur J. Goldberg:

[Inaudible]

Alexander H. Hadden:

Yes.

Arthur J. Goldberg:

[Inaudible]

Alexander H. Hadden:

To the extent that it may not have been scheduled routinely.

The — I think it’s apparent from what my adversary has said that the sole and only cause of negligence in this case relates to the claim of the defective door of the P&LE baggage car.

William J. Brennan, Jr.:

Incidentally, that’s not a Safety Appliance Act Claim, is it?

Alexander H. Hadden:

No, sir it is not a claim that it is.

The — from the facts that are in evidence this is the un-contradicted record.

The train, the P&LE train arrived, it was in the station.

The train arrived in the station.

Petitioner was already there with his truck loaded with mail bags.

He then proceeded to load his mail bags through the door which could not be opened fully and it was only perhaps a matter of two minutes, at the most three minutes before the time both — before the time that he was injured.

Thereafter, he offloaded some further mail bags which were taken back to the United States mail truck from which he had taken those which he was engaged in handling when he was hurt.

Arthur J. Goldberg:

[Inaudible]

Alexander H. Hadden:

There is only sentence in the record that touches upon that but in the interest — plaintiffs own testimony and I believe the only interest from it is that they came from the United States Post Office, Your Honor.

Arthur J. Goldberg:

[Inaudible]

I beg your pardon?

[Inaudible]

Alexander H. Hadden:

No, sir from the New Castle Post Office —

Arthur J. Goldberg:

Post office [Inaudible]

Alexander H. Hadden:

Yes, sir.

Arthur J. Goldberg:

[Inaudible]

Alexander H. Hadden:

Yes, sir, I — I’ve forgotten that important part and I’ll try to find it.

Arthur J. Goldberg:

[Inaudible]

Alexander H. Hadden:

Alright.

It is in the record.

It is in the record, yes, right at the beginning of petitioner’s testimony.

This is the only type of negligence, is the defective door.

There is no evidence and the petitioner does not now in his briefs or in his argument to — until the present time in this Court point to any reasonable practical means by which the B&O could have known or — about the defect or had done anything about it.

There is — the record is entirely silent on the matter.

There — he says that there is some duty of inspection which devolves upon a railroad in sending its employees to premises to off-railroad premises, if you will.

But he does not explain in concrete terms and the terms of the facts of this case how that duty which he says exist could have been resolved, could have been discharged by the respondents.

He submits to the Court that the record does not admit of any reasonable construction in this regard and that there is no evidence that the B&O Railroad could have done anything to prevent this accident.

Earl Warren:

Well, is it your position that the moment he left the B&O property and entered the P&LE property that he was on his own —

Alexander H. Hadden:

No sir.

Earl Warren:

— so far as B&O is concerned —

Alexander H. Hadden:

No sir.

Earl Warren:

— and that he owed — that it owed him no responsibility?

Alexander H. Hadden:

No, sir.

Earl Warren:

What responsibility did it owe?

Alexander H. Hadden:

Your Honor, this comes down to an interpretation of this Court’s many decisions in the field as to what is meant by the non-delegable duty of care which is imposed upon a railroad under the Federal Employers’ Liability Act to see that its employees have a reason to which they are placed to work.

There are many cases.

There are two cases that come to mind instantly in this Court having to do with what the responsibility the B&O had toward its employee when it sent him off its own premises those being the Ellis case, a side track case, it’s one of hundreds of railroad side track cases where the courts — this Court and other courts have gone very, very far to impose a duty to foresee accidents on side tracks of other — of third party industries.

We say in this case that our duty to follow the petitioner.

We were responsible to him to emphasize care but care implies that we have notice of a defect or of a condition or a risk which will make his activities on the premises of the third party, here the P&LE, hazardous.

This defect — in the first instance there is no testimony as to how long it had been in effect as merely one sentence in the record that it had been reported to the P&LE.

Secondly, assuming that it had been an existence for some substantial period of time, its existence have been at some other place where it would have been absolutely impossible for a any representative or inspector for the B&O to have discovered it.

We say therefore that although the duty does exist, and although it is an onerous duty, and although there are cases after cases off premises where a railroad is held to have breached the duty and therefore for jury issues to have arisen, that this is not such a case, that there are no facts in this record.

It will require clairvoyance for — complete clairvoyance for the defendant to have foreseen the happening of this accident.

Because it was unnoticed (Voice Overlap) —

Earl Warren:

If that conviction had existed on a B&O train and petitioner had been injured under the same circumstances, would the B&O have been liable?

Alexander H. Hadden:

Jury issues would surely have been presented, yes, sir.

Arthur J. Goldberg:

[Inaudible]

Alexander H. Hadden:

Well, I would say, Your Honor as to that question, the duty to inspect under our negligence statute is a duty which must be governed by the circumstances confronting the parties.

Now, is — if it’s a duty to inspect in this case, it seems to me there also must necessarily be a duty to inspect where for example an employee, as a railroad messenger is sent out to the city streets to deliver mail or what have you, or Shenker for example in this case, if he’d been run over by — when he was out calling people what —

Byron R. White:

There isn’t much you can do about that on the street —

Alexander H. Hadden:

We’re not —

Byron R. White:

— to control other drivers but there’s a (Voice Overlap) —

Alexander H. Hadden:

Well, suppose it had been — suppose there had —

Byron R. White:

— by the stuck door.

Alexander H. Hadden:

A stuck door on the mail truck for example which is a case that I have hypothesized on the briefs.

William J. Brennan, Jr.:

But Mr. Hadden, I —

Alexander H. Hadden:

Yes sir.

William J. Brennan, Jr.:

I would suppose that B&O has been in the railroad business long enough who had much experience with stuck doors.

Alexander H. Hadden:

I would assume they would know where the stuck door is (Voice Overlap) —

William J. Brennan, Jr.:

Well, now if it did, I would suppose if it — he’s going to assign one of its employees to work on railroad cars of P&LE which might get stuck doors, it might have some duty to look out for whether — inspect in advance would it not?

Just as it does I take it on its own it has — doesn’t have inspection procedures for its own cars?

Alexander H. Hadden:

As to stuck doors, I am at loss to answer the question.

I don’t know whether it does not —

William J. Brennan, Jr.:

You’ve made —

Alexander H. Hadden:

— but in the ordinary course of events, a stuck door is going to become apparent to employees of the B&O if it’s a B&O car.

Byron R. White:

Well, would you say — would you say that if this had been a B&O car that you’ll be making the same argument?

Alexander H. Hadden:

I would make the argument — in the first — if this were B&O car —

Byron R. White:

(Voice Overlap) set before the first instance, the first time this car had ever come through this town.

Alexander H. Hadden:

I was —

Byron R. White:

This fellow never been on that car before —

Alexander H. Hadden:

I would make that — the same argument with probably somewhat less assurance, Your Honor, but I would make the same argument if it is a car in the possession in the ownership of the B&O.

There are some court cases that say the very existence of a defect is sufficient evidence to take to the jury.

Byron R. White:

What more (Voice Overlap) — what more duties does B&O got to inspect its own car than some other cars having an employee working on it or what —

Alexander H. Hadden:

I don’t —

Byron R. White:

— or chances it got to discover that stuck door on its own cars than in somebody else’s cars?

Alexander H. Hadden:

I don’t think that there is any greater duty of care but the duty is one that’s continuous.

It’s the duty of ordinary care towards its employees.

Now, there are categories of cases where there isn’t affirmative duty such as the Safety Appliance Act cases where whether you’re negligent or not, it makes no difference.

If there’s a defect, you’re liable to your employee.

The cases are really no different on — where premises of the employing railroad are involved and of premises.

The duty is the same and I think it’s — the cases are uniform or to the general effect that even on your own premises, even on the B&O premises, even if this had been a B&O car, there would have to be something in the — in evidence to show that the notice came to us of the defect.

Byron R. White:

Let’s assume that both the baggage man, the P&LE baggage man and the petitioner were injured by the same stuck door at the same time.

Now, can you say that one could recover and the other shouldn’t?

Alexander H. Hadden:

Well, that carries me to another aspect of my arguments, Your Honor.

Certainly, the P&LE inspector or baggage man could recover from the P&LE.

Byron R. White:

Yes, that’s — exactly.

Alexander H. Hadden:

And I’ll — an argument which we make in our brief —

Byron R. White:

Suppose there was a — suppose the P&LE should’ve known that the door is fixed.

Alexander H. Hadden:

There was evidence —

Byron R. White:

[Inaudible] they shouldn’t stick?

Alexander H. Hadden:

No, there was evidence that the door had stuck and it’s been reported and not repaired.

William J. Brennan, Jr.:

Mr. Hadden, haven’t we had some clinker cases where we’ve said that employees stumbling over clinkers could recover at least where the railroad didn’t show it had some kind of inspection procedure?

Alexander H. Hadden:

There’s one —

William J. Brennan, Jr.:

No inspection procedures whatever that — was there any question of the right of the employee to recover?

Alexander H. Hadden:

There are clinker cases which hold I recall that through issues are presented from the bare evidence that the clinker was precedent in a place where employees were required to (Voice Overlap).

William J. Brennan, Jr.:

And there was no evidence at least of any inspection procedures to discover it?

Alexander H. Hadden:

Well, necessarily since it’s our own premises, we’re talking about in your hypothetical case, it’s we who created the defect and I think that furnishes the gravamen of the offense of negligence.

William J. Brennan, Jr.:

Well, I thought we had one of them where all the clinkers are suppose to come from a locomotive of — on some adjoining track.

Alexander H. Hadden:

I’m not as —

William J. Brennan, Jr.:

Well —

Alexander H. Hadden:

— familiar with that case, Your Honor.

Byron R. White:

The instructions in this case were adequate, you think [Inaudible]

Alexander H. Hadden:

Our position is, Your Honor, as to the instructions that they do not state the correct test of legal liability and that if that test had been applied, the case would not have gone to the jury.

Byron R. White:

You didn’t think it should’ve been — had gone to the jury at all?

Alexander H. Hadden:

Well, the instruction said and I do have them here and can provide the Court with a copy if you’d like to have them.

They say in general that there is responsibility upon a railroad to furnish its employees with reasonably safe appliances, cars, and whatnot and that it makes no difference whose appliances whether the railroad owns them or on whose premises they are located.

Now, that we regard as a test which mistakes the law.

William J. Brennan, Jr.:

Well, I don’t gather Mr. Wright urges that theory of recovery here.

Alexander H. Hadden:

I’m not sure I understand Mr. Justice.

William J. Brennan, Jr.:

I say, I don’t think Mr. Wright urges that theory of recovery either here.

As I understood him, he’s urging that this is a situation that stuck doors or stuck doors in railroads and that you’re going to put your employee on it, you ought to have some kind procedure.

Alexander H. Hadden:

That that — that I gather is his basic position and our position — our answer to that is, if he will stand up and tell us how as reasonable operatives of railroads, we are going to discharge that obligations.

We will be glad to assume the responsibility, we think it’s —

Byron R. White:

But you’re not asking or urging any error of the law are you, in the instructions or anything else?

Alexander H. Hadden:

No sir.

Except the —

Byron R. White:

So really what you’re saying is that there’s no evidence whatsoever in this record to sustain the finding that the railroad failed in its duty of exercising reasonable care?

Alexander H. Hadden:

That’s correct Your Honor.

Subsidiary to our main argument and I would like to pass that briefly now is an alternative contention.

Alexander H. Hadden:

In the trial court, the petitioner brought suit against not only the B&O Railroad, but the P&LE Railroad.

At the close of all the evidence that P&LE was directed out by the trial judge, first on the grounds that there have been no employment relationship shown to a sufficient — to support an F. E. L. A. case against the P&LE, and secondly that there was no diversity of citizenship.

We would — we have pointed out in our briefs and I should like to invite the attention of the Court now to the fact that our load of facts and evidence are quite skeletal as to the relationship between the two railroads at the time of the question.

There is an adequate basis we think for a jury issue of liability as to the P&LE under the F. E. L. A.

There are two bodies of decisions, one of which is the Sinkler Line decisions which I think the Court has well in mind that I want to deliver which holds that an operational type of activity makes in effect — converts an employee of one railroad into an employee of another and therefore perhaps entitles him to recover under the F. E. L. A.

Secondly, there’s another line of decisions which maybe referred to as the loan servant doctrine, traditionally it is.

There’s no question in this case but that the work being done by the petitioner at the time of his injury was work for the P&LE.

It was work which was totally unrelated to the B&O.

There’s nothing in the record to show that the B&O was in any way interested between — in the transfer of mail between the post office and the P&LE.

John M. Harlan II:

Is that the issue —

William J. Brennan, Jr.:

(Voice Overlap) — have we had any issue here —

John M. Harlan II:

Yes, (Voice Overlap) —

William J. Brennan, Jr.:

— as to the liability of P&LE?

Alexander H. Hadden:

No, sir, we don’t.

However, petitioner makes the argument that — a rather emotional argument that what is going to happen to the railroad employees if F. E. L. A. and liability is not imposed upon employing railroads under the facts of this case.

Our response to that is that his F. E. L. A. rights are protected that if he had appealed from the dismissal of the Pittsburgh & Lake Erie Railroad by the trial court, I think this Court would find itself without too much question holding that there was F. E. L. A. liability issue.

John M. Harlan II:

What you’re suggesting is he had a better case against the P&LE than against you?

Alexander H. Hadden:

He had a pretty near perfect case, I would say, yes, sir.

Arthur J. Goldberg:

[Inaudible]

Alexander H. Hadden:

Yes sir.

Arthur J. Goldberg:

[Inaudible]

Alexander H. Hadden:

That’s right [Inaudible]

Arthur J. Goldberg:

[Inaudible] is the one who made the motion for [Inaudible] for P&LE.

Alexander H. Hadden:

That’s correct Your Honor.

[Inaudible]

Alexander H. Hadden:

I beg your pardon?

[Inaudible]

Alexander H. Hadden:

Yes, sir.

I think perhaps it’s appropriate to summarize our position at this time and close my argument.

It boils down simply to this that under the authorities of this Court as well as the lower federal courts, there has to be one of three fact situations developed by the evidence and that none of them is — there is no case of liability.

Alexander H. Hadden:

First, it has to be shown perhaps that the employing railroad created the defect.

We’ve not — that is not our case.

Secondly, the cases which Mr. — my adversary points out, Mr. Wright that he thinks I have misread them and misargued them.

I — for myself on good offices, to the Court in that connection I think I have analyzed these cases as fairly and as objectively as I’m capable of and I don’t —

Potter Stewart:

What about Harris?

Alexander H. Hadden:

The Harris case, Your Honor, can be read I think in more than one way but I do think that there is evidence in the Harris case from which there was evidence commented upon by the Ohio Court of Appeals in its opinion.

And the Court of Appeals of Ohio recites that the fact situation, the unevenness of the block and the group — and the work that was being done and the Court — the tie according to plaintiff’s testimony I quote briefly from page 544 of Ohio appeals, the tie according to the plaintiff’s testimony was covered with mud, grease or oil according to the plaintiff’s testimony.

Plaintiff’s foreman walked by and the upon plaintiff’s asking for help to extract the block, plaintiff was told, “You are a big, strong man.

We are busy.

Hurry up.”

Now, without going any further to the details of the Harris case, it’s our position that that evidence by itself shows notice of what was there to be seen through the foreman of the Pennsylvania Railroad which was the employing railroad and the defendant in that case.

Potter Stewart:

The Ohio Supreme Court, I have it here, 160 Ohio State.

First of all, it stated the Ohio rule that in answer — that there was negligence of — under one specification, it was an implicit rejection of the other specifications for negligence and then said that what the case had to do with is whether — whether the defendant railroad had the duty of going over the premises of another railroad was applying to have come to discover every imperfection thereon before sending its employees there to do the job which they’ve been trained and so on and so forth which would — and that reasoning was certainly rejected wasn’t it by this Court it reversed the (Voice Overlap) —

Alexander H. Hadden:

No, sir.

I would say — it simply was not rejected.

What this Court did, it — there was a special finding which is referred to in the book that you have in your hand which was to the general effect that the negligence of the defendant railway was in requiring plaintiff to work on a slippery place where there was some unevenness of the tie and the road to that effect, yes.

And the only thing this Court did upon certiorari was to say that that conclusion as found by the Ohio jury was supported by the evidence.

It didn’t reject the Ohio court — the Ohio Supreme Court’s holding which you’ve just read that’s expressly declined to impose a duty upon the railroad to go over the premises of third parties with the client [Inaudible]

Potter Stewart:

Well, Harris says there are two interrogatories herewith.

The first one, was the defendant negligent, yes, this Pennsylvania Railroad.

Alexander H. Hadden:

Yes sir.

Potter Stewart:

And if I understand it, the work was being done on that — on the line of another railroad —

Alexander H. Hadden:

Yes sir.

Potter Stewart:

— by a Pennsylvania Railroad employee.

And then the second interrogatory is if your answer to number one is yes, state what that negligent consist — negligence consisted and the answer just was that the tie was elevated and covered with grease and mud.

Somebody had a duty to know about that.

Alexander H. Hadden:

Yes, and I —

Potter Stewart:

The employer, the Pennsylvania had a duty to know about it or else the negligence couldn’t have existed —

Alexander H. Hadden:

And I’m saying —

Potter Stewart:

— and the case couldn’t have been reversed by this Court.

Alexander H. Hadden:

That’s right.

I’m trying to make it clear, Your Honor, the Court of Appeals’ opinion makes it clear —

Potter Stewart:

Indicate that the defendant railroad didn’t know about this.

Alexander H. Hadden:

The plaintiff’s foreman, an employee of the Pennsylvania Railroad did have knowledge or at least an opportunity to know about the conditions which the jury and its special finding had described as negligence.

Potter Stewart:

Because in this case, the plaintiff himself knew in advance that this was not — this is an overt defect, wasn’t it, an open defect, the stuck door, the Plaintiff himself?

Alexander H. Hadden:

Oh yes, yes, indeed on the question indeed without any question, in our case, yes.

Potter Stewart:

Yes.

Alexander H. Hadden:

That’s true.

Potter Stewart:

As contra — I’m talking about this present case not Harris and Harris I suppose they didn’t see it until the accident happened, but in the present case, the plaintiff knew all about the fact this door was stuck, didn’t he?

Alexander H. Hadden:

Yes, sir.

Except — you suggest that has some particular legal significance?

Potter Stewart:

Well, I wondered if you did.

John M. Harlan II:

No sir, I don’t.

That would go towards contributory negligence but there’s no finding in this case as to that.

And of course there’s no assumption of risk in this case and so on.

I was up doing those as well.

I’d like to close if I might by just addressing one word or two to what might be described as the policy aspect of this case.

I think it — probably my position in that regard is implicit to what’s already been said it is that in order to justify the result in this case, this Court has got to extend the coverage of the Act of two situations not heretofore governed by any case including the Harris case as I read it.

Certainly, not the expressed terms of the Harris case, don’t cover this fact situation and I think it’s enough to say that if it is so extended, this Court has perhaps occupied appeal which is more appropriate occupied by the Congress of the United States.

Earl Warren:

Mr. Wright.

Charles Alan Wright:

If the Court please, I have only three points I wish to make in rebuttal.

I was surprised by counsel’s suggestion that the charge to the jury in his view did not state the correct test of legal liability.

As is already been mentioned, there was no exception taken to the charge by either side of the conclusion of the charge.

The trial judge said, “Gentlemen, have I misstated anything?”

Counsel for the defendant said, “No.”

This afternoon in this Court is his — the first suggestion I’ve heard, the charge was inaccurate or the judge did not give a quick test of legal liability to the Court.

William J. Brennan, Jr.:

Mr. Wright, [Inaudible] P&LE?

Charles Alan Wright:

Mr. Justice Brennan, I wouldn’t think that the appeals did — much chance of success.

I appreciate Mr. Hadden’s willingness to spell out legal arguments by which it might have been found to be an employee of the P&LE but this argument seemed to me not at all firmly based.

The argument —

William J. Brennan, Jr.:

Well, in any event the reason in appeal was not taken was that you thought was not meritorious?

Charles Alan Wright:

Yes, I think — we did not think it would win.

We think that an employee does not need to rely on such as [Inaudible] as the loan servant doctrine or the operational activities doctrine that he is entitled to look to his employer.

Employer sends him some place else and he’s hurt, his employer should pay.

Finally, I’m strongly tempted by Mr. Hadden’s invitation that I stand up here and say what the Baltimore and Ohio could have done.

As an interested student of the railroads, I would enjoy telling the Baltimore and Ohio would’ve — could’ve done but I think it knows much better than I what might have been done.

It certainly could have inspected.

It could have had a supervisory employee there who — when he heard the P&LE baggage man say this door won’t open.

I’ve tried to get it fixed and it hasn’t been fixed.

He could’ve said, “Shenker, no, do not work on this car.”

It could have issued instructions to its employees that they were not required to service equipment which was found to be defective.

Now, if the – if the duty here is a hard one on the Baltimore and Ohio, it seems to me that that is the risk it takes when it sends its employee elsewhere.

It’s quite obviously as in a better position to control the condition of its own cars in its own premises than it is there is of another carrier, but it assumes that risk when it enters into some arrangement we know not what to service the other carrier.

And so, in my view, the correct principle is that it was stated by the Sixth Circuit on the case of Payne v. Baltimore and Ohio, where it said when the employer delegates its duty or abdicates its control, the employer takes the risk, not the employee.

It seems to me that here, if there was a risk involved and it was hard for the B&O but that’s just what the B&O asked for.

Potter Stewart:

Do the — does the — how — did it show how long the car was there in the station?

Charles Alan Wright:

Only a very few minutes, Mr. Justice Stewart.

Potter Stewart:

Or there —

Charles Alan Wright:

Perhaps two or three minutes before he loaded it and maybe five minutes in all as I understand the record.

Potter Stewart:

Was this a what, a passenger train?

Charles Alan Wright:

I would gather that it was from this number of (Voice Overlap) —

Potter Stewart:

This is a mail car, wasn’t it?

Charles Alan Wright:

A mail car, yes sir.

Potter Stewart:

Was there any evidence the car had ever been — through there before?

Charles Alan Wright:

I think the record is silent on that point.