# Brief for the Respondents in Opposition — Terminal Railroad v. Pashea > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1403%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondents in Opposition - **Published:** January 1, 1943 - **Citation:** 318 U.S. 763 ## Text 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?)