Brief for the Respondents in Opposition — Terminal Railroad v. Pashea

eS PIELER RY

Pie

FEB 3 1943

i a rn a ae

G8L YRETLET

CLE wre

ewes

IN THE

SUPREME COURT OF THE UNITED STATES,

OCTOBER TERM, 1942,

TERMINAL RAILROAD ASSOCIATION }

OF ST. LOUIS, a Corporation,

Petitioner,

VS. > No, 641,

JOHN G. PASHEA,

Respondent. :

RESPONDENT’S BRIEF IN OPPOSITION TO.

PETITION FOR WRIT OF CERTIORARI.

JAMES T, BLAIR,

HARVEY B, COX,

EDWARD KOOREMAN,

Attorneys for Respondent.

ISD WERNER

Sr. Louis Law Pauvrine Co., 415 North Highth Street. CE ntral 4477.

INDEX.

Page

Opinion of the Supreme Court of Missouri........... 1

Character of the Pashea case....................... 2

Questions presented by petitioner................... 2

We UE cvs Gu CUCL eran ua va Wuleis Hee dauuce sae 4 3

Inadequacy of petitioner’s statement re.evk 6S wk 3

Respondent’s statement of the facts........... er

Excerpts from the opinion of the Missouri Supreme

WES K5 £0 8G SANS Cid ees Cad coat sKbccke cou 14

Brief for respondent...... VAVICEWEAEERAERS Gk oSeRE Ga . ae

I. Reviewing sufficiency of evidence.............. 19

If. Petitioner’s claim as to a ‘‘federal”’ | ee 19

ITT. ‘Physical law” ....., ke} Casuntnecuery cenaeee 20

IV. 1. Evidence not in record here........ jbucakes 21

2. ‘‘Indications’’? and demonstrations at trial

WOE cnc hekKipik- Pees habe wees TT ae |

V. 1. The instinct of self-preservation........... . 2

2. Common knowledge ‘part of jury system’’.. 9292

VI. 1. Affirmative evidence not eseential........... 93

2. Jurors’ common sense part of jury system... 23

VII. 1. The natural reactions of a living being to be

sinsssacte uantvion MOE eT PORTO ice.

2. Sudden emergencies ....... ey eaiicéaeh 24

3. Memory of details not to be expected.... 24

PUGMGIEE ois cc kieasunkok. ‘ashi basewanew cee eueky ae

I, Petitioner’s points .................. icseeneen ae

II. Inadequacy of petitioner’s statement..... ieKen ae

ILI. Petitioner’s assumptions ........... ‘vtewkeksn. Se

tis ents — URE EOS Minar Rm ee ON a Fic ne te een ate

RED ny eae eR MY ERG NEEDY CRE SESE RTS BE MRR aE he ve Te ——

VIET PEIN FENTON RN TR LRN PART? TRIES ER

ii

TV. The matter of “bracing himself’’.............. 28

ae Perrrer ray Tere Terrier 29

VI. Petitioner’s decisions on physical law.......... 29

VIL. Opinion not based on speculation.............. 31

VIII. Steele v. Railroad, 265 Mo. 97................. 32

Be SND laine ck weber dens Cisse need Cons tes 33

Cases Cited.

Pes & S & See Se eereee rer ere. 34

B. & O. R. R. Co. v. Landrigan, 191 U. S. 461, 474..... 22

Chesapeake & Ohio v. Martin, 283 U. S. 209, 215 et

BU cea ca iene bores sae 646 REGS OAKS eed 32

Daniel v. K. C. Elec. Co., 177 Mo. App. 280.......... 29

Delk v. St. Louis & S. F. R. R. Co., 220 U.S., lL. ce. 587.. 19

Dunlop v. U. S., 163 U. S. 486, 487 (10), 499, 500... .22, 23

Dunn v. Alton R. Co., 340 Mo. 1087............. 29, 30, 31

Gately v. St. Louis & S. F. Rv. Co., 332 Mo. 1, 14..... 20

Gulf, Mobile & N. R. Co., 275 U.S. 455.............. 16

Gunning v. Cooley, 281 U. S. 90, 93, 94, 95............ 19

Hardin v. I. C. R. BR. Co., 334 Mo. 1169........... 17, 19, 32

Hoyt v. Met. St. R. Co., 73 App. Div. 249, 251, aff’d

Se ee x NG eae es 8 0S dea shee Ree RS 23, 26

Jenney Electric Co. v. Branham, 145 Ind. 314, 37 L.

a ee aed hace denen lia bs eneok 22

Murphy v. Wolferman, 148 8S. W. (2d) 481, 485....... 20

Parrent v. M. & O. R. R. Co., 334 Mo. 1202, 1213...... 20

Pashea v. Terminal R. R. Assn., 165 S. W. (2d) 691,

Cai cantina woe date peck etewea nada 1, 19, 20, 21, 24

Pettyjohn v. Interstate H. & P. Co., 161 S. W. (2d) 248,

ML da darcammacawacl hc satan a caaeeeaieeNes 15, 24, 26

Phoenix Ins. Co. v. Dosten, 109 U. S., 1. e. 32

PE IE ne See a Oe

ili

‘Preliminary Treatise on Evidence’’ (Thayer), pp.

ESR ane ne anne pe ee ea ee ere 23

Rome Ry. & Light Co. v. Keel, 3 Ga. Appeals 769...... 30

Rostad v. Portland Ry. Co., 101 Or. 569, 578-581. ..... 22

Schupback v. Meshersky (Mo. Sup.), 300 S. W. 465,

ea aa ee ation k Cree tar vane k eenaea caeyace 20

Scroggins v. Met. St. R. Co., 188 Mo. App. 213........ 30

RROTD Fee, DO PN OF ie Sew ki kn vbcaccecsds's 32

Texas & Pacific Ry. Co. v. Behymer, 189 U. S. 468, 469. 19

Thayer’s ‘‘Preliminary Treatise on Evidence, 193, 194. 23

Union Pac. Ry. Co. v. McDonald, 152 U. S. 262, 281... 24

Van Brock v. Bank, 161 S. W. (2d) 258, 260, 261..... 23, 33

Walters v. Syracuse R. T. Co., 178 N. Y. 50, 53...... 20, 21

Winkler v. P. & M. Mining Co., 141 Wis. 244, 247..... 21

Statutes Cited.

Federal Employers’ Liability Act, 45 U. S. C. A., See.

51, Act of April 22, 1908, Sec. 1, 35 Stat. 35........ 2

Encyclopedias Cited.

AS, Os Oe ee, 34

20 Dik, Gil, Wee. Ty BD BBO G i ha es ei dendesccices 20

32 C. J. S., Sec. 1031, pp. 1074, 1075................. 20

lh i Sal i aa Tate Dey ed a) eS tat

NEN Si ah Set BA

SEE OES TS ee NP ET Re ee Ee

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1942.

TERMINAL RAILROAD ASSOCIATION )

OF ST. LOUIS, a Corporation,

Petitioner,

VS. > No. 641.

JOHN G. PASHEA,

Respondent. J

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

L

The opinion of the Supreme Court of Missouri in the

case of John G. Pashea v. Terminal Railroad Association

of St. Louis, which petitioner (defendant in the state

courts) asks this Court to review on certiorari, has not

yet been published in the official Missouri Reports. It is

reported in 165 Southwestern Reporter (2d), at pages 691

to 696, inclusive. It is set forth in the record in this court

at pages 172 to 180, inclusive, and (on rehearing) on

pages 230 to 231, inclusive.

II.

CHARACTER OF THE PASHEA CASE.

1. Pashea sued petitioner under the Federal Employers’

Liability Act (45 U. S. C. A., Sec. 51) for damages for

injuries received when he was precipitated from his work-

ing station upon one of petitioner’s cars by reason of a

negligently sudden and violent stop of the train.

2. The petition charged that “* * * because and as a

direct result of the negligence and carelessness of the

defendant, the said train was caused to stop with unusual

and extraordinary suddenness and jerk, causing the plain-

tiff to be violently hurled and thrown from said train,

seriously and permanently injuring him * * *.” The

answer was a general denial.

3. The only issue in the Missouri Supreme Court was

whether the evidence made a case submissible to the jury.

Til.

QUESTIONS PRESENTED BY PETITIONER.

In this Court petitioner’s contentions are reducible to

one, namely, that the evidence was not sufficient to justify

submission of the case to the jury.

Severally, they are: 1. That respondent’s testimony was

contrary to physical law; 2. that respondent’s evidence

was so contradictory as to be self-destructive; 3. that

petitioner’s evidence was “of such a conclusive character”

that, as a matter of law, the verdict should have been set

aside; 4. that the opinion of the Supreme Court of Missouri

amounts to an approval of a verdict and judgment based

solely upon “speculation.”

eee. pee

IV.

THE FACTS.

4

Inadequacy of Petitioner’s Statement.

Petitioner’s statement of facts is, in our opinion, inade-

quate. Doubtless by inadvertence, (1) it omits essential

facts, (2) incorrectly assumes that all the evidence is in

the record, (3) contains what we believe to be inaccuracies,

and (4) does not present vital evidence which appeared

to the jury and trial court. In conformity to this Court’s

rule that a statement of facts here must contain all that

is material to the consideration of questions presented,

we submit the following statement for respondent. The

nature of the issue here requires a full statement.

2.

Respondent’s Statement of the Facts.

Petitioner’s limitation of the issues in this court amounts

to admissions of many things. It admits that respondent

was, at the time of his injury, in petitioner’s employment,

us a brakeman, and was at his work, in line of duty, in

interstate commerce, on top of the rear car in a sixty-three

car train or ‘‘drag’’ (R. p. 44), and was precipitated, in

some way, from his working station on the rear car, to

the ground and so seriously injured that the amount of the

judgment is not excessive.

The record shows the injury occurred March 12, 1940.

Respondent had been working for petitioner since August

17, 1909, except for a brief time in 1920.

The night was bad. It was ‘‘raining,’’ ‘‘dark,”’ ‘“spit-

ting snow, sleeting and there was some fog.’’ ‘‘It was as

wet as though it was raining; it was misting all evening’?

(R. p. 45). It was a dark night, ‘‘Misty, rainy, smoky,

black night’? (R. p. 98). Petitioner’s engineer at the

Wp,

: .

vier ae _

—————

a UNG HAH LE ROTM TLR AES RE IODIDE LE OSLER RE

time of the injury said, ‘‘It was rainy and foggy,’’ and

that he ‘‘couldn’t hardly see.’? The running board on top

of the rear car was wet. ‘‘It was too wet to sit down”’

(R. p. 87).

Respondent’s work was ‘‘to protect the rear end’’ of

the train on which he was working ‘‘from anybody run-

ning into us’? (R. pp. 44, 45). He was ‘‘stationed’’ there

(R. p. 44). So says Benson, the head brakeman at the

time (R. p. 100). So says Boyer, the engineer at the time

(R. p. 113). Respondent got upon the top of the rear car,

with his lantern, ‘‘up at the Wabash stop,’’ when he saw

the ‘‘hot shot’’ (a fast train hauling perishable goods)

‘‘coming around’’ (R. p. 47). As rear brakeman, respond-

ent’s assigned position was on top of the rear car, and

that was the universal practice at all times in such cir-

cumstances (R. p. 60).

Respondent had no duty at all concerning the air brakes

at any time (R. pp. 44, 45). Petitioner’s head brakeman

(Benson) said he had nothing to do with them and didn’t

know whether they all were connected. He testified that

all matters pertaining to brakes are ‘‘left to a man that

is specialized in that field’? (R. p. 106). Benson had been

railroading since 1903. The ‘‘specialist’’ did not testify.

The crew of the train in question consisted of respond-

ent, the rear brakeman, Benson, the head brakeman,

Boyer, the engineer, Lotz, the foreman (or ‘‘conductor’’)

and Porterfield, the fireman. Every one who was asked

about the other members of the crew answered correctly

as to names and functions except the engineer, Boyer.

Boyer became confused (R. p. 113), hesitated, and then

named Hargis as fireman that night (R. p. 113). The

fireman was Porterfield (R. pp. 142, 148). It was not

Porterfield’s ‘‘regular’’ run. He was ‘‘only an emer-

geney man at that time.’’ ‘‘Was furloughed at that time.”

He testified on direct examination by Mr. Sheppard that

he was on the engine ‘‘when all this took piace,’’ but didn’t

wa

a

i

on

aieeeal

know ‘‘anything about it; * * *

only what I was told’’

(R. pp. 142, 145).

Pa 0 PPX

Boyer, the engineer, was 55 years old (R. p. 121) at

5

the time his deposition was taken March 14, 1941 (R. p.

111), just one year and two days after respondent was :

hurt. He, Boyer, “went to work” for the petitioner in :

February, 1910 (R. p. 121), he said, and then said he 5

had been an engineer ‘‘off and on’’ since 1912, but is ‘* back F

firing sometimes, and an engineer whenever I can’? (R. :

p. 122), but ‘‘am a regular engineer now.’’ He ‘‘acted”’ :

as a fireman about three years, ‘‘in the summer of 1933, :

1934 and 1935,’’ and had been regularly employed as an en- :

gineer since (R. p. 122). He testified he had been on the

%

run in question ‘‘since March 1, 1940,’’ just eleven days ;

before respondent was injured (R. p. 124, at bottom).

He testified further that his deposition was being taken =

at his home because of his illness. Then (R. p. 123) this :

followed: ‘‘What is the nature of your illness? A. Well,

just nerves, and I can’t walk good.’’ He said he had

been suffering from his ailment a good while and had been

‘‘off work’’ four and one-half months. He also testified

his illness (R. p. 122) ‘had been gradually coming on’’

(R: p. 123).

He further testified:

**Q. How long had you noticed that gradual devel-

opment of your physical condition? A. About a year.

Q. So that, on March 12, 1940’’ (the date of re-

spondent’s injury) ‘‘you were not in the best of

health? A. No. Q. You were under a doctor’s care

at that time’’ (the date of respondent’s injury), ‘‘Mr.

Boyer? A. Yes. Q. What was your doctor’s name?

A. Dr. Harry Kline. Q. * * * Had you been under

his care for some time? A. Yes. Q. But you had

been working regularly? A. Yes’’ (R. p. 123).

At the time respondent was hurt nobody except Boyer,

the sick engineer, and Porterfield, the substitute fireman

Mee S. 3.

Rae 7 RE Sate wera

—ay

— von

(whe says he ‘‘didn’t know anything about it’’), was on

the engine. Benson, the head brakeman, was on the

ground thirteen car lengths back of the engine (R. p. 102).

Lotz says he was not on the engine at that time (R. p.

138). Respondent’s station was on the rear car and he

was there. Boyer is the only man, except respondent, who

was then on the train at all, excepting Porterfield, who

was on the engine, but gave no testimony as to the stop (R.

pp. 142, 148).

There were three ‘‘regular stops’? between Madison and

East St. Louis. Respondent testified that two ‘‘regular

stops’? were made before he was hurt (R. p. 46) and the

next ‘‘regular’’ stop would be at St. Clair avenue (R. p. 46).

There was adequate evidence that there was a stop for

‘‘not very long’’ before the locomotive crossed St. Clair

avenue (R. pp. 78, 79). It was ‘‘about a regular stop”’

(R. p. 79) in character. Respondent was not hurt there

(R. p. 79). The train then started up again (R. p. 79) and

ran about fourteen car lengths (about 560 feet) before

respondent was hurt (R. pp. 79, 83). There was evidence

that the train had attained a speed of eight, ten or twelve

miles an hour when respondent was hurt (R. pp. 101, 69,

117, 133).

Roach, appellant’s first witness, a railroad man, not an

employee of petitioner, was first to reach respondent after

the latter was hurt. He testified that respondent was lying

between the rails, four or five feet from the rear end of the

rear car (RK. p. 96, at bottom). Other evidence showed

that respondent’s head was nearest the car, and his feet

farther away (R. pp. 61, 62, 67).

When respondent was injured the train was in a con-

siderable ‘‘or rather steep’’ curve, so Benson, the head

brakeman, testified (R. p. 109). So says respondent (R.

pp. 61, 66). In fact, the curve through which the train

was then passing was such that the train, though headed

say Eaketasead NER cea etre ent ermitee teat ters tite ett _—

—

paR Maa

east before it reached the curve, yet after it ‘‘made the

curve,’’ was headed south (R. pp. 109, 47).

Boyer, the engineer (R. p. 130), testified:

**Q. So when you take a long train, if you brake it

by using the ‘straight air’ (‘engine air’), why, the

rear cars would have a tendency to sorta whip——

A. (Interrupting) Yes.

Q. ——and swing around? A. Yes.’’

There is adequate evidence that the effect of an ‘‘engine

air’’ stop (in fact, any violent stop) is to make the rear

car ‘*buckle and twist’’ (R. p. 48) and ‘‘jerk and swing’’

(R. p. 61), and that effect is greater on a long train than

a shorter one (R. pp. 61, 108). Lotz, the conductor, said

that a ‘‘dynamiter’’ would make rear cars ‘‘buck and

jump a little bit,’’ but ‘‘not like stopping the train with an

engine’ (R. p. 140), i. e., with ‘‘engine air’’ brakes. Lotz

also testified that if a long train is stopped with ‘‘auto-

matic air’? (train air) ‘‘all cars stop almost simultane-

ously’’ (R. p. 138).

The nomenclature used in testifying about air brakes

is to be kept in mind. ‘Engine air’’ is, also, varyingly

called ‘straight’? air or ‘independent air’? (R. p, 107).

‘Engine air,’’ under either name, ‘‘puts the brakes on

the engine and tank’’ (tender) only, and ‘‘not on the

cars’? (R. pp. 89, 118). ‘‘Automatie air’’ is where the

air brakes all along the line of the train are coupled up

and used to stop (R. p. 118). That is also ealled ‘train

air’? (R. p. 105, at bottom), or ‘‘train line air.’’

Benson, petitioner’s head brakeman, testified that ‘if

the engineer makes a sudden application of the ‘engine

air,’ that simply glues the wheels of the tank and the

engine to the rails and stops them * * * and that is a

sudden jar of the train, * * * providing you are going at

that kind of speed’’ (R. p. 107). Benson then testified:

a

pe ers

‘*(). You mean the stop at St. Clair? A. Yes, sir;

we made our permanent stop and took our head end;

he applied train air.

(). You say he used ‘train air’ on a long train to

make a stop? A. ‘Engine air’’’ (R. p. 110).

(This was the stop which hurt respondent [R. p. 61].)

The controversy about stops is whether the train stopped

momentarily before reaching St. Clair avenue, or merely

slowed down (R. pp. 76, 102). There is adequate evidence

that respondent was hurt when the stop was made after

the engine crossed St. Clair avenue (R. p. 81, respondent,

and p. 103, Benson). That stop was the one made for the

cutting off of the head thirteen cars. Respondent testi-

fied the stop was from the application. of ‘‘straight air,”’

the same as ‘‘engine air’’ (R. p, 48), and testified to its

effect and to a long service (over thirty years) and to

experiences of an unfortunate nature involving stops of

a violent nature from the use of ‘‘engine air’’ (R. p. 88).

Lotz testified that the ‘‘slow down’’ he says was made,

‘‘the first time,’’ was made with ‘‘engine air,”’? but that

he was not on the engine when the stop which hurt re-

spondent was made (R. p. 141), and that Boyer was

‘‘wrong if he said he never applied ‘engine air’ at all”

(R. pp. 140, 141).

“Q. You saw him apply it?) <A. Yes, sir.’’

Benson, the head brakeman, first testified that the stoy

’ (or ‘‘train air’’) and

described in detail how he had reasoned it out that it was

‘fautomatie air’? (R. pp. 108, 104), but later (R. p. 110)

he testified, on redirect examination, that it was made

with ‘‘engine air’ (R. p. 110). Lotz testified (R. p. 138)

that the longer the train is, if a stop is made with ‘‘straight

was made with ‘‘automatie air’

air’’ (engine air), ‘‘vou run more slack in. as a rule, up

against the engine, and if the stop is made with ‘‘auto-

matic air’’ (train air) ‘‘all cars stop almost simultane-

SPREE EERIE EDEN SSPE OTN GOL LED FO By PINT

a on

ously’’ (R. p. 138). He further testified that there wouldn’t

be ‘‘a very severe jolt’’ if the train was moving at six

miles an hour, upon the application of ‘fengine air,’’ but

‘‘as you increase the speed the jolt gets harder”’ (R. p.

138). (There is evidence that the train was running eight,

ten or twelve miles an hour when the violent stop was

made, The rate was for the jury.)

Lotz also said that the ‘‘behavior of the rear car on a

train as long as this would depend upon the load in the

car and the condition of the track’? (R. p. 139).

The record shows that in describing ‘*jolts,’’ and the

like, from using air brakes, appellant’s witnesses were

describing ‘‘careful’’ stops (R. pp. 110, 105). Appellant’s

witness Benson said that from his experience since 1903

(in petitioner’s service) he knew that “as a matter of fact,

you cannot tell each time what you are going to get back

there; they’’ (the rear cars) ‘‘act one way at one time and

another at another. But it is a dangerous practice for an

engineer to stop suddenly, when he has to brake, because

of the cars in the rear’’ (R. p. 108). ‘*Dynamiters’’ ap-

pear in the record as themselves the cause of dangerously

sudden stops.

Benson, the head brakeman, testified he had been rail-

roading since 1903 (in appellant’s service) and felt ‘‘pretty

much at home in that service.’’ He testified that a

“‘dynamiter is a car that has a dirty triple valve; they

have corrosion on them, and that is why the Interstate

Commerce Commission, the National Government, requires

they go through them’’ (the air brakes on the cars)

“often and clean them out, and when those tin plates have

this corrosion, I cannot explain it clear, but they will

cause some kind of combustion in there, that will cause

your brakes to stick, and it may cause your entire train

to do a quick action, but a dynamiter is a dirty triple

valve’’ and ‘‘so if there’s a ‘dynamiter’ on the train and

the ‘train air’ (‘automatice air’) is applied, you have a

RINSE gO HEE Ss

antiien,

very sudden stopping, and any cars back of it’’ (R. pp.

106, 107). The ‘‘specialist’’ and ‘‘inspector’’ of air brakes

for appellant was not called as a witness (R. p. 106).

Lotz said (R. p. 140) that a dynamiter ‘‘would cause

the cars back of it to buck and jump a little bit,’’ but

‘‘not like stopping the train with an engine’’ (R. p. 140)

(engine air).

Respondent testified (R. pp. 89, 90) that on a ‘‘dyna-

miter’? ‘‘the air sets on the car much quicker than any

of the rest of them, and it will cause much the same

thing (as an ‘engine air’ stop), if not worse, on the rear

end.” “It is a peculiar condition in one particular car

that sets the brakes on that particular car quicker than

the others.’? Benson (R. p. 110) finally testified that the

jars and jolts depend upon ‘‘who operates the engine.’’

In this case Boyer was operating it. His condition is

described heretofore in this ‘‘Statement.’’ He was, at

the time, suffering from a ‘‘nervous’’ disorder. Benson

further testified that ‘‘an engineer can take and use a

brake, an engine brake, by being careful, on a speed of

ten’ miles an hour and never jar his train anywhere along

his entire train’? (R. p. 110). ‘‘It depends on who op-

erates it’’ (R. p. 110). A proper stop is made by cautious,

and gradual, and successive light applications of the

brakes (R. p. 107, at bottom, and pp, 104, 105).

Boyer testified (R. pp. 130, 181) that there was never

‘Cat any time’? anything ‘‘that loomed up in front’? of him

that caused him to ‘make any sudden stop,’’ and ‘‘no stop

was made on that run as the result of anything suddenly

appearing in front of’? the train. He said that ‘‘there was

no emergency stop made at all’? (R. p. 131).

Respondent testified that at the time he was thrown

from the rear car he was standing on top of the car (its

running board) ‘‘only eight feet from’? the rear car’s rear

end (R. p. 70). He described the place of the stop and, as

se Rata res LD EEO LEE PE Ag CELI SEATED ION

rn eo

to its character, testified that the ‘‘train was stopped all

of a sudden with a terrific stop. * * * It stopped un-

usual, and buckled and twisted in every shape’’ (R. p. 48),

and it ‘‘knocked him from the train’? (R. p. 49); ‘‘the

sudden jerk and sudden stop, it knocked me off the rear

end’’ (R. p. 61); ‘‘I was thrown right off the rear end and

I hit the ground and fell toward the train’’ (R. p. 61) ‘‘and

fell on my right side’’ (R. p. 62); that he ‘“‘got no warn-

ing; the first intimation I got was the jar, and then I was

thrown off’’ (R. p. 64); ‘‘I was knocked off sideways, right

off the back of the train’’ (R. p. 67); ‘‘just knocked off’?

(R. p. 69); ‘*I was knocked clean clear of the coupler and

also the brake shaft’? (R. p. 74). There was ample testi-

mony that the stop made the car ‘‘whip’’ and ‘‘swing’’

and ‘‘jerk’’ and ‘‘wrastle around’’ (R. p. 61), and testi-

mony of appellant’s employee witnesses that such a stop

us respondent testified to would make a rear car on such

a train ‘‘whip’’ and ‘‘swing’’ and ‘‘buckle,’? and other

testimony warranting the jury in finding that the brakes

were released as the stop ended. Respondent testified (R.

p. 61) to more than one impulse given him by the stopping,

the jerk and the whipping, swinging, buckling and the

like. He used the word ‘‘knock,’’ to sum up the result, in

the sense in which he used the same word to indicate what

happened when other stops caused him to fall (R. p. 88).

There is evidence that warranted the jury in refusing to

accept, on the trial, the rigid meaning in which petitioner’s

counsel used the word ‘‘knock”’ in his argument below

and uses it in this court (R. p. 88). Counsel for petitioner

and the respondent and his counsel, at the trial, frequently

used different words (R. pp. 57, 61, 64, 71, 83, 88). Re-

spondent was badly injured (R. p. 96). Respondent testi-

fied that he ‘‘was five feet away from the wheels” (R. p.

63); his head was closer to the train (R. p. 67) and he was

in the center of the track (R. p. 68).

a, pon

Respondent had experienced previous ‘‘awful jolts’’

from sudden application of brakes and ‘‘got knocked down

on top several times’’ in his thirty odd years service as a

brakeman, but ‘‘was not knocked off’? (R. p. 88). Re-

spondent testified he never saw over six or seven such

stops in all of his thirty odd years experience as a brake-

man for petitioner. (He, in an answer, started to relate

details, but was stopped by petitioner [R. p. 48]). The

first thing respondent did after he struck the ground be-

tween the rails was to look for the wheels. Railroad men

are trained ‘‘to look for the wheels’? (R. p. 49). When

respondent looked the train was ‘‘standing still’? (R. p.

49). Respondent’s condition was such that he couldn’t

eet out from between the rails (R. p. 49). His injuries (R.

pp. 13, 14, 23, 31, 32) show a condition that prevented his

moving his body.

The matter of respondent’s exact position on top of the

rear car when he ‘‘was knocked off sideways * * * right

off the back of the train, but knocked off sideways”’ (R. p.

67) (on cross-examination of respondent) was gone into

by petitioner’s counsel at length.

The record shows that cross-examining counsel first

elicited the answer from respondent that he was standing

on the rear ear’s running board at the time he was thrown

from the rear car, and was ‘‘facing sideways, towards the

National Stock Yards crossing,”’ and ‘‘the train was moy-

ine east,’? and he was facing ‘‘I would call it northwest’’

(R. p. 65). Respondent’s deposition had been taken, in

which appellant’s counsel had assumed, ‘‘for convenience,”

that the train was moving south on a straight track,

whereas it was in a curve. Counsel tried to show contra-

diction with that deposition. The seeming contradictions

are explained and shown to be due to mere differing as-

sumptions (R. p. 66) made by petitioner’s counsel which

did not accord with the compass or the curving track,

Pe ik, on

Again (R. p. 69, at bottom) cross-examining counsel re-

sumed the matter of exact position of respondent at the

time he was ‘‘knocked off’’ of the rear car. First, he used

a ‘‘writing board’’ with the ‘‘clip on it’? and he and re-

spondent talked about it at some length, and petitioner’s

counsel and respondent did considerable ‘‘indicating’’ of

respondent’s exact position and movements at the moment

when the violent stop was made, and did this in the jury’s

presence. Nothing in the record here now shows what the

jury then saw of these things. Again (R. p. 70) more ‘‘in-

dications’? were made in the jury’s presence. This record

does not show what was then ‘‘indicated’’ by either pe-

tioner’s counsel or respondent—collaborating. Again (R.

p. 71), the train which, for the purposes of a deposition,

had been assumed to be going south (R. p. 65), was as-

sumed before the jury to be going east (R. p. 71). Other

‘‘indications’’? were given, but not one of them is shown

here. Other like ‘‘indications”’ as to position of respond-

ent appear (R. p. 86) which do not appear here in the

record, though they were before the jury. Without their

being shown here, it is not possible to know what counsel

for appellant, the respondent, the trial judge and the jury

saw at the trial in that connection, however clear it was

to them, with all the ‘‘indications’’ before them. The jury

heard all the testimony and saw all the ‘‘indicating’’ that

was done in its presence, and found for respondent. The

trial judge heard and saw the same things, and overruled

the motion for new trial.

— ¢

¥.

EXCERPTS FROM THE OPINION OF THE MISSOURI

SUPREME COURT.

1.

The opinion of the Missouri Supreme Court (including

the opinion on rehearing) appears in the transcript of

record in this court, at pages 172 to 180, inclusive, and

(on rehearing) at pages 230 and 231, inclusive. It is not

yet printed in the Missouri Official Reports.

2.

(1) The opinion (1) states the issues (R. 173), (2) states

certain facts the record shows, including (3) facts con-

cerning ‘‘plaintiff’s version’’ of the happening here in ques-

tion, and (4) shows that plaintiff (R. 174) ‘‘demonstrated

before the jury to show how the forces applied in the stop

operated.’’

(2) The opinion (R. 174, 175) states petitioner’s conten-

tion as to physical law and, in this connection, states, ver-

batim (R. 175), more of respondent’s testimony as to the

cause and manner of his fall (R. 175).

(3) It then properly distinguishes the cases there cited

by petitioner as to physical law (R. 175).

J

vw.

The Missouri Supreme Court’s opinion then proceeds

(R. 175, 176, 177) as follows:

‘‘Defendant’s argument here is based upon the as-

sumption that only one single force could have been

applied to plaintiff. It is true that part of plaintiff’s

cross-examination, other than that above quoted,

would be susceptible of the construction for which

defendant contends. However, when all of plaintiff’s

testimony is considered together most favorably to

PPLE NS PEE LIFE EDIE TN TEE BE LN ET NTN FH EN

a |,

his claim (as it must be in ruling the sufficiency of

his evidence to make a jury case) there is substantial

evidence to show that the first force applied in the

stop did operate in the direction defendant says the -

law of inertia would operate, but that plaintiff was ©

not thrown forward by it because he was braced

against it. It does not seem unreasonable to believe

that there would be some jerk back or rebound immedi-

ately from such a sudden stop. It is true that plaintiff

said it happened quickly (indicating with a snap of his

fingers), but only such a sudden stop would likely

have caused him to lose his balance. Therefore, we

think it would be reasonable for the jury to find that

there was in operation more than a single force in one

direction only; that there was a sudden jerk, shake or

rebound as well as a sudden slackening; that the forces

applied in bringing the train to a sudden stop oper-

ated both forward and backward; and that the plain-

tiff would not be thrown down forward when braced

against a force operating in that direction but could,

because of the violence of that foree, and slick condi-

tion of his footing, lose his balance so as to be thrown

off the end of the car by subsequently acting forces

from those movements which he described as

‘buckled,’ ‘twisted,’ ‘jerked,’ ‘swung around’ and

‘wrestled around.’ ’’

(The opinion then disposes of the matter of ‘‘slack’’ to

which petitioner refers.)

The opinion then (R. 176, 177) proceeds:

‘‘Moreover, in such a sudden emergency the jury

might reasonably consider that the time element seemed

shorter to him’’ (Pashea) ‘‘than it was and that he

could not ‘relate all the acrobatic movements per-

formed’ (Pettyjohn v. Interstate Heating and Plumb-

ing Co. [Mo. Sup.], 161 S. W. [2d] 248, 1. e. 251). In

consideration of all that plaintiff said we do not think

we would be justified in disregarding his testimony

as in violation of physical law and impossible. We

a

=

have often said that ‘so frequently do unlooked-for

results attend the meeting of interacting forces that

courts should not indulge in arbitrary deductions from

physical law except when they appear to be so clear

and irrefutable that no room is left for the entertain-

ment, by reasonable minds, of any other’’’ (citing

numerous decisions).

4,

Thereupon (R. 177) the opinion fully distinguishes Gulf,

Mobile & Northern R. Co. v. Wells, 275 U. S. 455 (cited

here), and (R. 177, 178, 179) settles the matter of knowl-

edge of Pashea’s position on the rear car of the train.

}.

The opinion (R. 178, 179) proceeds to show that (1)

there was no reason for a violent stop; (2) that petitioner’s

engineer was unfamiliar with the run, and (3) was, and

long had been, ill, and (4) under care of a physician for a

serious ‘‘nervous’’ condition, and proceeds:

‘*Plaintiff here related what occurred and, according

to his testimony, this caused him to be thrown off the

end of the ear. There is no dispute about the fact that

he did fall from the rear car, and it was for the jury

to say whether it believed his testimony as to what

occurred and its effect’’ (the Court mentions different

kinds of brakes and continues) ‘‘so far as appears

there could have been a negligently violent stop by

either method, especially under weather conditions

shown and plaintiff’s precarious position.’’

6.

The opinion then holds that ‘‘plaintiff’s evidence made a

jury issue as to the negligent violence of the stop in ques-

tion.’’

ae 27 aw

7.

The opinion (R. 179) next discusses and disposes of peti-

tioner’s present claim that the federal courts have a rule

which requires trial courts to set aside plaintiff’s verdict

on a theory that defendant’s evidence (oral) is so strong

as to erase respondent’s evidence. The Court, in its opinion

(R. 179), calls attention to the fact that in Hardin v. Illi-

nois Central R. R. Co., 334 Mo. 1169, 70 S. W. (2d) 1075,

it had discussed this very point, and that the opinion con-

sidered the decisions of this Court (cited in the Hardin

ease and cited in this court), and held that there was no

such rule, after reviewing the decisions of this Court from

the time of Marshall and Story to date. It also pointed

out that this Court (293 U. S. 574, 55 S. Ct. Rep. 86, 79

L. Ed. 672) denied certiorari aimed at Hardin v. Illinois

Central R. R. Co., supra.

8.

The Missouri Court’s Opinion on Motion for Rehearing

(R. 230, 231) fully answered petitioner’s claim in that

court and in this case, that the main opinion was based

upon fragmentary and self-conflicting evidence of Pashea.

The opinion on the motion for rehearing on this point

Says:

‘‘We fully agree that plaintiff’s testimony must be

considered as a whole, and that, if so viewed, it is so

completely contradictory that one part destroys the

other, then it amounts to nothing, is not substantial

evidence, and will not sustain a verdict (citing cases).

However, we do not think this true of plaintiff’s evi-

dence in this case, and we have explained why we so

ruled. We have also explained why we do not consider

plaintiff’s account of the occurrence and its results to

be impossible. We think the jurors could understand

what it means to brace oneself against the operation of

the law of inertia (whether standing in a farm wagon,

E. Serre pa eserssecommage,

oie oe

in a bus or on top of a freight car); also that the effect

of a sudden stop might unbalance one so braced (espe-

cially on slippery footing) even if his bracing has pre-

vented him from being thrown forward; and, further,

that when cars are coupled together the slack in the

couplings can operate both ways when there is a sud-

den stop. Plaintiff’s account was not as perfect a de-

scription as might have been made by a professor of

English, but we think it was sufficient to show that

there were forces operating both ways. (In fact it is

almost impossible to believe there would not be a

rebound of cars coupled together from such a stop.)

Furthermore, we think that the interpretation of plain-

tiff’s descriptive terms ‘shake,’ ‘jerked,’ ‘twisted,’

ete., was for the jury in the light of all the facts and

circumstances they believed to be true from the evi-

dence; and that plaintiff’s testimony, taken as a whole,

provided a reasonable basis for their verdict. The

motion for rehearing is overruled.’’