Shields v. Atlantic Coast Line Railroad Company

PETITIONER:Shields
RESPONDENT:Atlantic Coast Line Railroad Company
LOCATION:Pittsburgh Party Headquarters

DOCKET NO.: 150
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 350 US 318 (1956)
ARGUED: Jan 19, 1956
DECIDED: Feb 27, 1956

Facts of the case

Question

Audio Transcription for Oral Argument – January 19, 1956 in Shields v. Atlantic Coast Line Railroad Company

Truman M. Hobbs:

The petitioner was an independent contractor engaged in the business of unloading tank cars of gasoline for delivery to local consignees of that gas in Montgomery.

The petitioner, Mr. Shields, went upon the tank car that, from which he suffered his injury, called the purpose of unloading this gasoline.

It is necessary on the type of the tank car that he was working upon for him to climb to the dome of the tank which is some 10 feet in the air to release the — open the dome and to turn the valve.

There is a board there at the top of a short ladder, right there at the dome, which is put there for the primary purpose of having people stand there while they do the operation that petitioner was about to do.

This board was admittedly so rotten that it crumbles in your hand.

When petitioner stepped upon this board, it fell to the ground and he fell with it, suffering severe injuries to his back, and was permanently injured.

The case went to the jury, the District Court lay on Montgomery on two counts of a complaint, one sounding in common law of negligence, the other relying on the Safety Appliance Act.

The jury rendered a general verdict in the amount of $7500 and the District Court affirmed it.

The case then was appealed to the Court of Appeals in New Orleans.

That Court found that it could not determine whether the jury had decided then on the ground of common law of negligence or on the ground of Safety Appliance Act and sets in the view of the Court of Appeals.

The Safety Appliance Act was not properly invoked.

It remanded the case to the District Court for trial on common law negligence grounds alone.

It was the theory of the Court of Appeals that the failure of the I.C.C. to issue any regulations standardizing this appliance, which we call a running board, was conclusive proof of an administrative determination that this board was not a safety appliance.

It was from that judgment of the Court of Appeals that this petition of certiorari was filed and that the case is now here.

Now the — our case is very simply stated, the theory on which we rely for recovery is this, the Section 11 of the Safety Appliance Act states that all cars requiring secure ladders and running boards shall be equipped with such ladders and running boards.

This was a running board, it was insecure and rotten.

Petitioner stepped on it and fell to the painful injuries which there’s no dispute about.

Now, to this simple statement of our theory of recovery, the defendant has — our respondent here has raised three defenses which we’d like to discuss with the Court.

The first defense raised by respondent is that this is not a running board because it was not standardized by the I.C.C.

And respondent, in his brief, condemns petitioner for what he calls petitioner’s persistent assumption that this was a running board.

And an answer to that is simply this, that the Railroad was just as persistent in calling this a running board until the railroad was confronted with a violation of those — with the Safety Appliance Act provisions about having a running board secured.

The railroads repair order, which was put in evidence in this case, showed that the railroad called it a dome running board.

The superintendent of the railroad in answering interrogatories propounded to the railroad by the petitioner, Shields, answered no less than seven times calling this a running board.

Even on the trial, the counsel saw the railroad and witnesses called by the railroad referred to it on more than one occasion as a running board.

This idea that it’s not a running board is something fair at length that has been thought of by the railroad and the railroad is upset because petitioner won’t join the railroad in its inconsistency.

But the sole basis on which the railroad relies in its contention that this is not a running board is the absence of any regulations on the subject by the I.C.C.

And as we shall demonstrate the failure of the I.C.C. to standardize this appliance has absolutely no significance in determining whether this is in fact the running board.

The I.C.C. has filed a brief in this case in which it acknowledges that the ladder which goes to this running board is also not standardized.

Now, the I.C.C. doesn’t contend that that ladder is in a lesser ladder because of its failure to standardize it.

And we can’t see why this running board should be designated as any lesser running board because of its failure to standardize.

Truman M. Hobbs:

The I.C.C. contends that it has failed to standardize this appliance because it is not an appliance which is primarily used in the movement of a train.

And we want to discuss in a few minutes the — what we think is the erroneous ground for not so regarding it as a safety appliance, that is the ground offered by the I.C.C.

We think that when Congress used the term “running board”, it must have used it with reference to railroad pallets.

Now, the term was designated in railroad pallets and this record as has already been shown is full of evidence, almost without dispute, that this appliance is known in railroad pallets as the running board.

There is some evidence in the record that some employees call it a dome step board, and in that connection, Webster’s New International Dictionary defines a running board as a clip board.

So, we think that the term is certainly synonymous but the evidence also is clear in the record that the car inspector with 25 years of experience on the railroad says that it’s always — it’s known by him as a dome running board or a top running board.

So there was adequate evidence for the trial court to have found as it did find that this was the running board and submit the question of whether that running board was secure to the jury.

Now, I think the principal argument of the I.C.C. — of the railroad here, however, is that even if this be a running board, the omission of the I.C.C. to standardize it means that it is not a safety appliance.

Now, this contention is based on the railroad’s conception that when Congress gave in Section 12, the authority to the I.C.C. to standardized these appliances that it was also giving to the I.C.C. the right to say which appliances shall be secured.

We point out, however, that Section 11 of the Act just simply says all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards.

And then, Section 12 gives the I.C.C. the right to standardize those appliances.

We submit that the railroad is omitting to note the interplay of these two sections.

Stanley Reed:

Where — where is this Section 12?

Truman M. Hobbs:

Section 12, you mean set out in briefs?

Stanley Reed:

Yes.

Page 18 — but they — page 18 of the 53.

Truman M. Hobbs:

We think —

Stanley Reed:

Which — which section is it that says the I.C.C. shall issue the regulations?

Truman M. Hobbs:

Section 12.

That — that says the number, dimensions, location and manner of application of the appliances provided for by Section 4 and 11, this title is designated by the Interstate Commerce Commission shall remain as the standards of equipment to be used on all cars subject to the provisions of Section 11 and 16 of this title.

And then down further, it says that failure to comply with any requirement of the Interstate Commerce Commission shall be subject to a light penalty as failure to comply with any requirement of Sections 11 and 16 of this title.

So, we submit that Congress clearly had its eye on two — two enables.

One was the failure of railroads in many cases to keep these appliances secure and that’s what Section 11 was designed to prevent.

Section 12 was designed to prevent the evil of not having these appliances standardized so that on a dark night of railroad employee might reach for a handhold that he might think should be there or a running board that is ordinarily there and might not be.

So those were the two enables but we submit that by giving as — the I.C.C. the authority to standardize these appliances, there was no intent on Congress, whatsoever, to take it away from its clear command in Section 11 that running boards and ladders be maintained in a secure condition.

Stanley Reed:

What — what kind of a tank or what — car or just tank car?

Truman M. Hobbs:

Yes, sir.

Stanley Reed:

Which — what kind of that, as — what — what I’m looking at is the — the regulations of the Interstate Commerce Commission.

Truman M. Hobbs:

They —

Stanley Reed:

The car with outside sales and tank cars with short side sales

Truman M. Hobbs:

This — a picture of this tank car is attached here as an exhibit.

This is a tank car with — with a dome on top and a short ladder leading up to this —

Stanley Reed:

Well, do you know when it comes under Section 131 (8) or 131 (9) of the —

Truman M. Hobbs:

No, sir, I do not.

Earl Warren:

Is there anything in the record to shows what are most of the dome cars of this kind do have such running boards?

Truman M. Hobbs:

There’s — I think the only thing in the record on that point is that some cars do not have this running board near the dome.

Some cars, as I understand it, are designed so that it’s not even necessary to go to the top of the car to release the contents of the car.

Earl Warren:

But I meant this particular kind of a car.

Truman M. Hobbs:

Well, I think — I think all cars that are like this —

Earl Warren:

Yes.

Truman M. Hobbs:

— do have a running board or a platform board up there so that use of whoever is —

Earl Warren:

That’s what I wasn’t I quite —

Truman M. Hobbs:

Yes, sir.

Now, we think that the —

Stanley Reed:

Well, in this — this regulation which says the running board outnumbered, one continues running board around sides and ends, or two running the full length of tank and one on each side.Does that — is that we have here?

Truman M. Hobbs:

No, sir.

We — we didn’t have that running board here.

But we also have a running board which is not described any way in the regulations.

Stanley Reed:

Well — and that’s the running board that broke?

Truman M. Hobbs:

Yes, sir.

Stanley Reed:

The one that’s not prescribed in the regulation.

Truman M. Hobbs:

Yes, sir.

And it’s the contention of this Court of — it was the view of the Court of Appeals this contention of the railroad that that omission to standardize that appliance that on the — on the top of the — of the tank car makes it not a safety appliance.

But we contend that Section 11 which says, “All cars requiring secure running board shall be equipped with such running boards isn’t clear to men regardless of what the I.C.C. does about the standardization of this appliance.”

Now, I point out in connection with this interplay of these two sections —

Felix Frankfurter:

Does that mean that — it is the compulsory under the statute to provide the board in controversy?

Truman M. Hobbs:

No, sir.

It — it is their view that it is not compulsory and we think that there are practical reasons why the I.C.C. may not wish to standardize this particular board because the —

Felix Frankfurter:

You mean the standardizing applies to — you’d have to have the same kind.

Truman M. Hobbs:

Yes sir.

Felix Frankfurter:

That doesn’t exclude that you have to have some kind.

What I want to know is, is it necessary to have this kind of a law.

Truman M. Hobbs:

No, sir.

We would think it would not be necessary to have any board particularly if you don’t take the oil out or gasoline out without going to the top.

Now, we think —

Stanley Reed:

As a matter of fact, many of the tank cars have ladders, don’t they?

Truman M. Hobbs:

Yes.

This car has a ladder.

Stanley Reed:

You mean a ladder that takes you up to the door?

Truman M. Hobbs:

Yes, sir.

And the I.C.C. has not standardized that ladder but they don’t contend it’s any less of the ladder because they haven’t standardized it.

Where does it take —

Stanley Reed:

Well, is that the safety of —

Truman M. Hobbs:

I asked the — I think it’s the marshal who probably handled this.

(Inaudible)

Truman M. Hobbs:

No, sir.

It’s come up with the record but there’s only one picture.

Now, we think the Williams case had some light on this problem.

This was a case which — this Court decided when the — a man was injured when a ladder broke and he — at the time of his injury, there had been no I.C.C. orders promulgated at all.

And it was the contention of the railroad in that case that in the absence of any I.C.C. regulations, there couldn’t be any liability.

But this Court committing upon the difference between the section of — what we now called Section 11 and Section 12 says that as to Section 11, there is an imperative statute — an absolute and imperative statutory — statutory duty of making them secure.

And then it goes on to discuss the other responsibility under the next section of standardizing.

But even in the absence of any I.C.C. regulations, this Court in the Williams case held that those appliances had to be maintained secure.

Felix Frankfurter:

Well, I understand that although the statute doesn’t require it and they need not have had it, never let the State do have it and something happens there with absent liability, is that it?

Truman M. Hobbs:

That — now, when you say that the statute doesn’t require this, I don’t — don’t quite go —

Felix Frankfurter:

But I — I — that’s why I ask you the question —

Truman M. Hobbs:

Well, the statute says — the statute says all cars requiring secure running board shall be equipped with such.

Now, it’s our contention, and in the Williams case, this Court uses the language requiring for their proper use.

And the Court goes on to say that the ladder in the Williams case, the type of box car was it did require for its proper use, the ladder.

And therefore, it had to be saved.

Felix Frankfurter:

Well, let’s see if I understand you.

I understood your answer even my question wasn’t clear.

My question was whether this type of running board, not — not the standardized one of the fact —

Truman M. Hobbs:

Yes.

Felix Frankfurter:

— this kind of things is required by Safety Appliance Act.

Your answer is no, as I understood it.

Truman M. Hobbs:

Well, I — I should say –I should — should answer it this way that Safety Appliance Act says that in — in — and then I view it that — in reading it with the Williams case that if the running board is required for the — for the efficient use of the car, then it must be secured.

Felix Frankfurter:

Well, that — that’s another question although — but they need not have had this or any other kind of a running board of this kind.

Truman M. Hobbs:

If — if they will go release the gasoline form the bottom of the — of the car it —

Felix Frankfurter:

On this very car, just as it was —

Truman M. Hobbs:

Well —

Felix Frankfurter:

— suppose they had had enough, could you be sued under the Safety Appliance Act for disobedience of that Act without not having this particular safety appliance?

Truman M. Hobbs:

No, sir, we could not.

But I –I question whether you could have had this car operating in the way that it did where you had to climb to the top, if you didn’t have something in the nature of a running board there for the man to stand upon.

Stanley Reed:

Well, how — how are we to know what are safety appliances as —

Truman M. Hobbs:

Well, it — the Section 11 of the Act spells out in detail what safety appliances are.

The first term as sill steps, all cars shall be equipped with secure sill step.

The cars requiring secure running board shall be equipped with such.

And it goes on in details in that Act which the Williams case said was a clear statutory command.

It —

Stanley Reed:

Are — are those the only safety appliances?

Truman M. Hobbs:

No, sir.

They are — they are others, handbrakes —

Stanley Reed:

No — no.

I mean, are they all included in 11?

Truman M. Hobbs:

No, sir.

I think there are other sections which refer to safety appliance to this Section 9, I think, referring to — to brakes and so forth, references, other safety appliances.

Felix Frankfurter:

If I’m right — if I look at the brief filed by the I.C.C, do I incur correctly from that that it is their view that this running board was not a required safety appliance by the Safety Appliance Act, is that what they suggested?

Truman M. Hobbs:

Yes, sir.

Felix Frankfurter:

Now, what ways of mind could have catch with this submission by the I.C.C. do that construction of Safety Appliance Act?

Truman M. Hobbs:

Well, I think in deciding how much weight should be given to it, we — we should examine the reason advanced by the I.C.C. for regarding it is outside the Safety Appliance Act and the I.C.C. —

Felix Frankfurter:

Didn’t you — you say — you don’t say it was in it.

You said, that — we have to look for the particular circumstance and the particular car to decide whether this particular kind of cause of requirement —

Truman M. Hobbs:

No, sir.

Felix Frankfurter:

— is that your position?

Truman M. Hobbs:

I — I — my position is that — that this particular car requires a running board for its proper use.

Felix Frankfurter:

But then your answer — then I suggest you should say — then I ask you whether this is a required — first required by the Act, your answer is yes and then no.

Truman M. Hobbs:

Well, I — on this — on all tank cars, no.

But on this car, it is required in —

Felix Frankfurter:

We are not here to — you said —

Truman M. Hobbs:

Yes.

Felix Frankfurter:

— you have all the access of having it happen or had happened.

Truman M. Hobbs:

Yes.

In this — in this case, I say it is required for the proper use of this kind.

Felix Frankfurter:

And — and the Commission permitted this?

Truman M. Hobbs:

That’s right.

Now, the reason the Commission says it is not is that — that the Commission says that Section 11 was referring only to appliances that were used in the movement of a car.

Now factually, we think the I.C.C. is incorrect in saying that this board is not used in the movement of the car.

Hugo L. Black:

Where has the Commission said that?

Truman M. Hobbs:

They’d said that in their brief.

Hugo L. Black:

Well, has the Commission said it?

Truman M. Hobbs:

No, sir, just —

Hugo L. Black:

Is there any rule of the Commission or have they ruled on it in anyway?

Truman M. Hobbs:

It haven’t been called our attention that the —

Felix Frankfurter:

Well, instead of — isn’t the brief on behalf of the Commission — the Commission say —

Truman M. Hobbs:

Well —

Felix Frankfurter:

— they — I’m not — I found out the question what we can carry.

But the Commission speaks fully to have authorized general counsel, does he?

Truman M. Hobbs:

Yes.

I was only attempted to answer the question —

Hugo L. Black:

But I —

Truman M. Hobbs:

— as to where there’d been any —

Hugo L. Black:

I do not assume myself it’s because the counsel makes the legal argument and that represents the view of the Commission or in any actual functioning of the Commission in deciding a point.

Truman M. Hobbs:

Well, there hadn’t been any case —

Hugo L. Black:

(Voice Overlap) someone else lied, I do not.

And I was asking if the Commission itself has held that any time passed on this question.

Truman M. Hobbs:

It — it hasn’t been called our attention in brief or elsewhere.

Felix Frankfurter:

I don’t think this brief, an expression of the factors in the view of the Commission charged with the duty of enforcing this Act.

This isn’t an individual view from a lawyer who filed a brief.

This was asked by Commission to express its views on this case.

Truman M. Hobbs:

But I — I take it that Justice Black’s question goes to whether there had been a determination in a — in a hearing by the I.C.C. to that, so far as I know, there has not been.

They have filed —

Felix Frankfurter:

That has been its practice.

It doesn’t rest merely in the form of like hearing, this question of a — of a party that is charged within enforcement and presumably, they had the material before them and to justify them in making this statement or roughly and certainly don’t know can be legal to the Court.

Hugo L. Black:

Of course, it doesn’t read on legal argument by law.

Truman M. Hobbs:

Well, let me go just a minute into the reason advanced by the I.C.C. for this thing.

As I say, in fact, I think they’re incorrect in saying that this board is not using the movement of cars.

The evidence in the record from a car inspector with 25 years experience was it — it frequently mean when I found this board to pass hand signals that if it — if the dome top on this car became loose in the movement of the train and if the railroad employee might have to go up there to — and he’d seen employees have to go up there to tap that thing down with gasoline on the inside and its dome tank.

Not racking up and down, I think the Court can readily see the necessity for getting up there in such a circumstance.

But the main thing that the I.C.C. says is not supported by anything in the language of the statute.

If Congress said they intended only those running boards used in the movement of a car to be standardized, Congress clearly could have so stated.

It is true, as the I.C.C. says in its brief, I supposed, that Congress had its attention primarily focused on the toll of accidents that occurred to employees on moving trains.

But Congress didn’t seem fit to say that only running boards used in the movement of trains were covered by the Act.

The I.C.C. has simply — with — by sharing interest inserted those words in there.

I think Congress was aware that a fall from the top of a — top running board was just as serious as a fall from a bottom running board and would never have made the — inserted the words of the I.C.C. has cited — isn’t cited in there.

Now, I’d like to mention for just a minute, the argument of the railroad and the I.C.C. that the words in Section 11 where it says that all cars requiring secure running boards means all cars required by the I.C.C. to have secure running boards.

There again, they have simply inserted into the act language that Congress didn’t seem fit to insert for itself.

We think, if you read these — these sections — Section 11 as a whole, it’s readily apparent what Congress had in mind by the use of the word requiring.

It said all cars must be equipped with secure sill steps and efficient handbrakes.

All cars requiring secure ladders and secure running boards shall be equipped with such because all cars do not require ladders and running boards.

Truman M. Hobbs:

A gondola car, for example, has no running board on it, and Congress was not attempting to require the railroad to go to useless expense and put running boards where it — where they weren’t needed.

And again, in the Williams case, the Court gave the language requiring, we submit its proper interpretation which was cars requiring for their proper use.

These running boards shall be equipped with such.

And the last comment I’d like to make on that construction is that the tense of the word “requiring” would be all wrong.

If Congress in Section 11 were referencing regulations of the I.C.C. because at the time Congress wrote Section 11, there were no regulations by the I.C.C.

So, if they’d any I.C.C. regulations in mind, they certainly would have said because — which shall be required to have secure running boards.

So we submit that the omission of the I.C.C. to standardize this appliance cannot take away the protection that Congress was plainly trying to give employees in Section 11 that railroads must maintain running boards in a secure manner.

Stanley Reed:

Mr. Hobbs, I’m — I’m looking at the Safety Appliance Act.

It says that within six months from the passage of this Act, Interstate Commerce Commission so designate the number in both, dimensions location and manner of application of the appliances provided for by Section 2 of this Act.

And Section 2 is the sill steps and handbrakes, running board and so forth.

Truman M. Hobbs:

Yes, sir.

Stanley Reed:

Now, what — what about that — that authority to the I.C.C. to designate?

Truman M. Hobbs:

Well, we don’t think —

Stanley Reed:

(Voice Overlap) — you convert the mentioned location and manner of application of the appliances provided by this Act.

Truman M. Hobbs:

Well, we think that goes to the desire of Congress to have cited these appliances made uniform.

And the I.C.C. has — we submit, has authority right now to — to make a uniformity order with respect to this running board if it was to require on all cars, it can do so.

But we see no practical reason why they should free as the design of tank cars, some cars have it, some don’t.

But if a car is designed that requires for its proper use of this type of running board, then it has to be secure whether the I.C.C. sees fit to standardize that appliance or not.

And the reason the I.C.C. gives for its failure to standardize is the reason that it inserts into Section 11 by share inference.

There is not a word in Section 11 to indicate that Congress didn’t intend running boards on the top of cars to be maintained securely just as they intended that running boards on the bottom of a car be made.

Stanley Reed:

But it says they it shall designate the number.

As I understand it, they’ve — they’ve designated the numbering.

Truman M. Hobbs:

And when they designate the number, it — the Act goes on to say, this shall remain as the standards of equipment to be used on all cars subject to the provisions of Section 11, which is your Section 2, subject to provision of Section 11.

And then, a little later on, in the same sentence, it says that failure to comply with regulations of the Interstate Commerce Commission shall be subject to a light penalty as failure to comply with any requirement of Section 11.

So, there were two evils.

One was the uniformity was to be implemented by the I.C.C.’s regulations that — but the — as this Court said the absolute, imperative statutory command of Section 11 could not be avoided by I.C.C. regulations.

Felix Frankfurter:

I suppose (Voice Overlap), in this case, a special verdict had been asked from the jury, this case wouldn’t be here, would it?

Truman M. Hobbs:

I hope that’s — I think it’s probably correct that would — that would give me a feeling of comfort if we had to go back and try this thing over to feel if that would be —

Felix Frankfurter:

Our special verdict allows into the — the District Court in Alabama?

Truman M. Hobbs:

I think they’re allowed, Your Honor, as a matter of practice there.

Truman M. Hobbs:

It’s very, very rarely availed of.

I think it would be allowed, perhaps in the District Court and state court.

I’ve — I’ve never seen —

Felix Frankfurter:

I’m talking about Federal District Court.

Truman M. Hobbs:

Yes, sir.

Felix Frankfurter:

If you go on two counts, one based on negligence, the other enacted by (Inaudible), to use the shorthand.

I should think the (Inaudible) if you ask the jury to answer each one of the claims.

That doesn’t make this case.

Truman M. Hobbs:

No.[Laughs]

Norman C. Shepard:

May it please the Court.

I think —

Earl Warren:

Mr. Shepard.

Norman C. Shepard:

Thank you, sir.

The District Judge on the contrary told the jury that they need to make no finding as to that answer of the term in general verdict and need not to say which count is a basic point.

Now, may it please the Court.

This plaintiff of the course still has, under the Circuit Court decision, the right to go back and get a trial on the count of common law negligence.

As to the Safety Appliance Act, we say, in our brief two things.

We say it first that the Act does not require this board and we also say that the Safety Appliance Act is not available to this petitioner.

It appears in the brief and I have to call attention to it, the reply brief especially the statement is in there, inadvertently, I’m sure.

On page 12, that it is undisputed that its effective car was then used on respondent’s line at the time of the injury.

We respectfully dispute that.

The entire record shows this car had been delivered on a private chauffeur to an industry and totally disconnected from the line of the railroad and was sitting there in their control and in their possession.

This man was an independent contractor.

He testified that he worked at filling stations on such things as gasoline pumps and he was available to these people.

Incidentally, the record will also show on page 122, the witness, Watkins, who was the helper of the plaintiff, testified that the petitioner first went upon the running board and made some adjustments and connections.

Then he came down to make the holes or fixed the holes at the bottom and return to the running board having to send his helper up because he was only showing his helper how this thing was done.

And it was not until both of them at their weight upon this dome step board that it broke.

It doesn’t necessarily affect the legal problem confronting the Court but the petitioner passed over this board twice that are levered.

And of course, so does his helper and there was no apparent defect.

It is true that it broke.

Norman C. Shepard:

Now, I might say to further to please —

Earl Warren:

Is it true that the board was so rotten that it would crumble this (Voice Overlap) —

Norman C. Shepard:

Fragments of it, sir.

There was a knot hole or a knot in it.

And around that knot, there — there were crumble fragments.

Yes, that it supported the weight of the petitioner on his first trip and —

Earl Warren:

What caused it to break?

Norman C. Shepard:

The defective condition of the board.

Earl Warren:

Oh, I see.

Norman C. Shepard:

Yes sir.

It — it had a rotten place on it.

No — no dispute about that under the (Voice Overlap) —

Earl Warren:

It wasn’t overloading by two people that caused it to —

Norman C. Shepard:

Well, if — if it hadn’t have the rotten place, I take it that the two of them might have been able to stand upon it.

Now, may it please the Court, this board or whatever name we call it isn’t a running board because it doesn’t run anywhere, it’s a short board about six feet.

No one can run on it, nor does it run from any place to another.

Many of the old cars do not have a dome step board at all.

Some industry provide a scaffolding with a — a flat form themselves into which these cars are — are by — are by the side of the truck where these cars are placed and their employees or their independent contractor use their own facilities.

There’s no requirement whatever by the I.C.C. or the Act of Congress to make any convenience or device for those who unload the cars.

Loading and unloading devices are not covered anywhere in the Act.

Now, as to whether there has been a decision or not, this Act has been affected, I think, since 1910.

Earl Warren:

Well, is it true that the railroad company itself has, on many cases, many instances in connection with this case referred to this in the ordinary course of businesses or running boards?

Norman C. Shepard:

Yes, sir.

It is in the record that some of the witnesses so testified, but I might call the Court’s attention to the fact that acted easily have been by inadvertence, and then interrogatories, for instance, the profound — the question might distinguish adversary use the expressions on 15 or 16 times and thereby getting the witness to use it for some seven times, I believe he said.

But in his reply brief, he —

Earl Warren:

Do you know the superintendents of the railroad?

Norman C. Shepard:

Yes.

I believe it was, yes, sir.

It was referred to as a dome step running board.

But in his reply brief, he admits our contention about that and on page 2 he says, the witness is for the respondent and I have respondent’s counsel.

Norman C. Shepard:

Well, that’s into referring to it as a running board which, of course, I’m very liable to do myself.

Now, if the Court pleases —

Earl Warren:

Why, because it is a running board?

Norman C. Shepard:

Sir? [Laughter]

Inadvertently, sir.

And I confess it’s my first “I’m somewhat nervous.”

I —

Earl Warren:

No —

Norman C. Shepard:

— might thought of that.

Earl Warren:

I said, would you — would you collapse because it is a running board?

Norman C. Shepard:

No, sir.

I don’t see how it could conceivably be because it runs so well and no one can run upon it.

But I think it’s just a — a manner of speed or expression but as the Circuit Court said, there is nothing in the I.C.C. regulation by whatever name called that requires this board at the dome.

Earl Warren:

Would you describe the board please?

Could you walk on it?

Norman C. Shepard:

In a very limited distance, sir.

It is six feet in length.

Earl Warren:

Yes.

Norman C. Shepard:

It has no connection at either end.

Earl Warren:

Yes.

Norman C. Shepard:

There is a short ladder up to the handrail so that the industry can use.

That is not for railroad employees or ladders for railroad employees toward the ends of the car which they use to get up to the top of the adjoining car or to fix the brakes.

And this —

Earl Warren:

Well, I understood the yardmaster of 25 years experience that testified that it was used in the operation of the car that occasionally — occasionally they went up there, stood on — on that to fix the dome cap or other similar things.

Norman C. Shepard:

He said that, sir, but there — but he says it this way, “I have seen you.”

Some say it was accustomed or that it was a habit or that they did it.

But what we — what he is talking about there, of course, is a — a car in train movement and some employee thinking it’s more convenient to go that way, he might have done so.

Earl Warren:

How would they go beyond on that?

Norman C. Shepard:

Toward the end sir.

The ladder was on the end that are required.

Norman C. Shepard:

This — this thing is —

Earl Warren:

(Voice Overlap) would he — how would he get up to the dome?

Norman C. Shepard:

Well, we — we don’t understand he hasn’t any duty in connection with the dome, sir.

Not any.

Earl Warren:

— I’m talking about this testimony of your yardmaster.

You said that, he had — he had seen workmen go up there during the movement of a train to — to make secure this dome cap.

How would he be gotten up there if it hadn’t been for this — this ladder and this thing was commonly called a running board?

Norman C. Shepard:

Well, sir, if the car was standing still, he could have done so by going up to the end walking across, but it was in movement, there was no other way for him to do it.

Earl Warren:

There’s no other way for him to do it.

Norman C. Shepard:

No, sir.

If it was in — in facts and —

Earl Warren:

Then, is this a safety device?

Norman C. Shepard:

No, sir.

It’s a loading device, an unloading device.

Earl Warren:

Suppose during the movement of the train, the dome cap did become loose and started to — started to come off and you’re losing some of your oil.

What would you expect the employee — train employees to do?

Norman C. Shepard:

(Voice Overlap) —

Earl Warren:

Would you expect them to fix — make that fast?

Norman C. Shepard:

If Your Honor please, it could not lose the oil because they — they don’t merely fix it over to the valve under the dome that has to be turned and that is why this man was up there.

The dome coming off would not lose any oil.

Earl Warren:

Then let’s take something else it might happen up there to cause the same condition but how would he get up there?

Norman C. Shepard:

If the train was in motion, sir, it would be very dangerous for him to go any other way.

Earl Warren:

Then that —

Norman C. Shepard:

But assuming however —

Earl Warren:

Would you call that a safety device then?

Norman C. Shepard:

No, sir, because the same thing could have happened on the many cars that roll on the railroads that have no dome step board —

Earl Warren:

Well —

Norman C. Shepard:

We don’t have any at all.

And many of them do not and none of them are required.

Earl Warren:

Isn’t the fact that the railroad company put that there, some evidence that there was a safety factor involved?

Norman C. Shepard:

Well, sir, I don’t know, sir, but the railroad company didn’t put that there.

These tank cars are built by — by shippers.

Earl Warren:

For whom?

Norman C. Shepard:

For the use of the people in the petroleum industry and they are leased and are rented.

And we haul them for a charge.

We could not decline to take this car because it complied with the I.C.C. regulations.

We could not introduce it and in 45 years, we haven’t been able to refuse one that had it or didn’t have it.

There are several different types of these platforms.

Hugo L. Black:

Suppose you had look at it and discovered that this was rotten, do you mean that you would have to take that car?

Norman C. Shepard:

Yes, sir.

I think we would have or we could have — have that board repaired —

Hugo L. Black:

Because —

Norman C. Shepard:

— but that goes to the common law account —

Hugo L. Black:

Did the — did the I.C.C. required railroads to take cars with rotten things like that on it?

Norman C. Shepard:

No, sir.

Hugo L. Black:

I think (Voice Overlap) —

Norman C. Shepard:

I believe they could have made an exception to it.

Hugo L. Black:

— therefore —

Norman C. Shepard:

I think we could have made an exception to it, but not because it was a safety appliance.

If — if a door had been swinging, a door to a box car we could have taken the exception to it —

Hugo L. Black:

Assuming —

Norman C. Shepard:

— but not because it was a safety appliance.

Hugo L. Black:

Assuming that it is, I understand your argument that it’s not, assuming that it is a running board —

Norman C. Shepard:

Yes, sir.

Hugo L. Black:

— that’s what it is.

Is it your belief that Congress — that the board about describing some boards — running boards at other place and deprive people of the benefits of Section 11 which requires running board, it was required to be secured.

Is it your idea that the I.C.C. and by resolution or brief or anything here relieve the railroads from certain duty?

Norman C. Shepard:

I would call Your Honors attention to the very language, I think it is significant that the language of Section 11 says, all cars must be equipped or secures to the old (Inaudible) and efficient handbrakes.

And then next it says, cars requiring secure ladders —

Hugo L. Black:

What does requiring means?

Norman C. Shepard:

It means that the I.C.C. shall require.

Hugo L. Black:

Why does it mean the I.C.C.?

Does it say —

Norman C. Shepard:

Because it’s turned the administration (Voice Overlap) —

Hugo L. Black:

— the I.C.C. requires to have running board, suppose the company requires running boards, could the I.C.C., by its ipse dixit, relieve the company from liability for running boards which it dismissed required to be put there?

Norman C. Shepard:

The business of operating the railroad, may it please the Court, or had in the car did not require it to be put there.

This was built, as I say, by a shipper.

Hugo L. Black:

That’s a question, I know whether it’s a running board.

I can understand that argument.

Norman C. Shepard:

Yes.

These — these cars are built by shippers and they have various designs.

Some of them have a circle to walk way around the dome.

Some have boards on each side of the dome.

Some have supporting rails.

Some have nothing at all.

And — and not only do we say that they haven’t been standardized, we say it hasn’t been required and that there’s been a determination by the administrative agency charge with this responsibility for a period of 45 years that not all are required.

A continuous running board around the car is required —

Hugo L. Black:

Well, assuming —

Norman C. Shepard:

— not this dome step board.

Hugo L. Black:

Assuming that the business requires it and it’s a running board is secured here that because the I.C.C. chooses not to standardize it at that place, that it can thereby leave Section 11 which requires running boards, it requires to be secured that the I.C.C. can by its failure to standardize this particular one or relieve the burden which the laws puts on.

Norman C. Shepard:

Yes, sir.

I’ve taken that the I.C.C. has control of the administration of this Act —

Hugo L. Black:

Suppose —

Norman C. Shepard:

— and that Congress said —

Hugo L. Black:

— suppose I decided it didn’t need any.

That’s possible.

Norman C. Shepard:

Yes, sir.

They — they have so decided.

They don’t need this —

Hugo L. Black:

(Voice Overlap) anywhere —

Norman C. Shepard:

— this dome step board.

Hugo L. Black:

Suppose — suppose they decided it didn’t need anywhere.

That’s also possible.

Norman C. Shepard:

Of course it’s possible, sir.

But of course they have —

Hugo L. Black:

Well, suppose they did —

Norman C. Shepard:

— made many decisions through the years as to what they do require.

Hugo L. Black:

Suppose they did, would that relieve them — the railroad from the Safety Appliance Act?

Norman C. Shepard:

No, sir.

Because it says it must have some running boards.

Hugo L. Black:

Well, they must have a —

Norman C. Shepard:

But where they shall be and the kind they shall be and what kind and — and location shall be required is up to the Commission and upon that subject they have spoke.

They have said —

Hugo L. Black:

The word — the word —

Norman C. Shepard:

— they shall be one continuously.

Hugo L. Black:

— require, that would seem to me in the reply brief in the Section 11 doesn’t seem to me to apply what’s in the Section 12, I would suppose that a — many things maybe required for the operations of the railroad that the I.C.C. doesn’t standardized require it though.

Norman C. Shepard:

That — that is correct, sir.

Hugo L. Black:

And if this is a running board, it’s a running board.

Norman C. Shepard:

Well, of course that is for the —

Hugo L. Black:

Then it is not.

That’s — I understand that —

Norman C. Shepard:

That’s part of the — part of the ground that we’re on and we say, if it is a running board sir, it still is not a safety appliance because the I.C.C. has never said to put one there.

They said put it around here.

Hugo L. Black:

Your idea is that only running board, which all running — actual running board —

Norman C. Shepard:

Yes, sir.

Hugo L. Black:

— have to be secured —

Norman C. Shepard:

Yes, sir.

Hugo L. Black:

— that the I.C.C. says it have to be secure.

Norman C. Shepard:

That is correct, sir.

Except, of course, we still have our common law negligence —

Hugo L. Black:

Yes.

Norman C. Shepard:

— which remains to be tried.

Now, upon that face of the matter —

Felix Frankfurter:

Can we move on?

Is that with the shipper, there’s one statement that left me a little doubt when you emphasized the fact that power station (Inaudible) —

Norman C. Shepard:

Yes, sir.

Felix Frankfurter:

— for loading and unloading?

Norman C. Shepard:

Yes, sir.

Felix Frankfurter:

If this world are required for safety appliance for which, in connection with which there’s absolute liability, lots of this controversy is the problem —

Norman C. Shepard:

Yes, sir.

Felix Frankfurter:

— but not whether the railroad have some responsibility —

Norman C. Shepard:

That’s right, sir.

Felix Frankfurter:

— that whether these responsibilities followed them for negligence —

Norman C. Shepard:

Yes, sir.

Felix Frankfurter:

— but assuming it is safety appliance, it wouldn’t make any difference from the car station, wouldn’t it?

Norman C. Shepard:

No, sir.

Felix Frankfurter:

So, I don’t understand why you have decided that point.

Norman C. Shepard:

Because sir, he insist that its in train line service.

I emphasize it because we contend that this plaintiff, or cannot bring to his aid, the Safety Appliance Act even if it’s required, even if it’s a running board.

Because he wasn’t engaged in any type of interstate commerce, did not work for any railroad company and an employee or contract before the industry who had this car upon their private (Inaudible)

We owed him no duty as to safety appliances.

As I understand the law, the law — the Safety Appliance Act is regarded as supplemental to the Federal Employees Liability Act and thereby makes absolute duty to railroad employees which they can demand in case of injury.

Felix Frankfurter:

Did the Safety Appliance Act — did the Safety Appliance Act qualify the limited or restricted to the basis of recovery by people in the same relation to the railroad as to the liability of the railroad under Federal Employers Liability Act?

Norman C. Shepard:

I so understand it, sir.

Felix Frankfurter:

Well, then the must come in that the requirement of being an employee engaged in the interstate commerce.

Norman C. Shepard:

No sir.

He — he is just a local man that works on the pump.

Felix Frankfurter:

Yes.

But — but the plaintiff can sue for the Safety Appliance Act.

Is it your view — must be in the same relation to the railroad that an employee under Federal Employers Liability Act?

Norman C. Shepard:

Yes.

I mean —

Felix Frankfurter:

In other words, the passengers can’t do under Safety Appliance Act?

Norman C. Shepard:

Well, when we — then we are getting yet another subject, of course.

This Court has held that the — a failure to maintain proper average that’s required by the I.C.C. or is such a danger to the public generally that a non-railroad employee can — non-railroad plaintiff can’t recover under that Act.

But it —

Felix Frankfurter:

By virtue of the — by reason of negligence or as such without any (Voice Overlap) —

Norman C. Shepard:

As such —

Felix Frankfurter:

— that is — that is negligence (Voice Overlap) —

Norman C. Shepard:

Yes, sir.

As such it is a failure to maintain a safety appliance in which the public generally has a vital interest, but we don’t have a situation here.

This man isn’t public generally, he’s just a specialist.

They’d call into this.

Stanley Reed:

(Voice Overlap) — has — has no designations of the people who maybe injured by the Safety Appliance at all.

Norman C. Shepard:

No, sir.

But under the Federal Employers Liability Act, of course, an allegation or a proof of a violation of Safety Appliance Act that makes the liability absolute.

Stanley Reed:

But since this Act doesn’t designate, and it is only by — by virtue of — of the decision of this Court, was it not, that the Safety Appliance Act came to be a tort act too?

Norman C. Shepard:

Under the F.E.L.A., this Court has said the Safety Appliance Act did not create a cause of action.

Stanley Reed:

And the cause of action was —

Norman C. Shepard:

It’s created by the F.E.L.A.

Hugo L. Black:

And we avail that the two cases, have we not, that the Safety Appliance Act was the benefit of the employees, and the public and either one can be sued.

Norman C. Shepard:

You held that in the merit of the case, sir, with respect to the pubic.

I don’t recall the others.

Hugo L. Black:

Well, in United States against California, Coray against Southern Pacific Company?

Norman C. Shepard:

I think that we’re on references to that effect in those cases but there has been no case where an employee of an industry upon that all that it is completely offline, and in its possession has a cause of action under the Safety Appliance Act.

Stanley Reed:

I understand your position to be that the I.C.C., under the Section 12, must designate to be an equipment against — to be considered required on your thoughts.

Norman C. Shepard:

Yes, sir.

I think the word reply in Section 11 permits or requires the Interstate Commerce Commission to say what the running board shall be on the (Voice Overlap) —

Stanley Reed:

You said it’s closer as designated —

Norman C. Shepard:

Yes, sir.

Stanley Reed:

— to the Interstate Commerce Commission.

Norman C. Shepard:

Yes, sir.

I think the two sections of course, are part of each other.