Petition for a Writ of Certiorari — Beamer v. Virginian Railway Co.

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Office ~ s

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DEC 10 1949

sAnLES ELMORE CROPLEY

CHARLES ELMORE ya Ber

SUPREME COURT OF THE UN

OCTOBER TERM, 1943

No. 530

NELLIE FAYE BEAMER, Avmunisrrareix oF THE Estate

oF Rospert P. Beamer, Decrasen,

Petitioner,

versus

THE VIRGINIAN RAILWAY COMPANY, a Corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF THE STATE.

OF VIRGINIA AND BRIEF IN SUPPORT THEREOF.

Rosert J. AsHworts,

Davip D. Asuwortu,

Cart C. Sanpers,

Beckley, West Virginia;

J. L. Ditiow,

Pearisburg, Virginia,

Counsel for Petitioner.

Asuwortsh & Sanpers,

Of Counsel.

i 2 ea a NEE RLS PEE POR RL I Bia OESN IDA ANTES LES IDI HAL LSE i Till — inte Das meee: —

INDEX TO PETITION FOR CERTIORARI

Page

Doechateien it Ee NI ek er kein cscs es 2

Jurisdiction of United States Supreme Court......... 2

Summary and Brief Statement...................... 3

(a)—Description of Power Plant and general work-

i IE gorau eC he ek Oho hh as 4

(b)—Nature of work the deceased was doing imme-

diately prior to death. .... ge aed age es 5

(c)—Quotations from evidence supporting facts. .. 7

eee ___RRERERAEEN DAP Ir beer pene aL annar Sel y Panini tC en 9

(55-—-VEIONS Ss 6 Sev ae w kad ea ev bawenss Bee Sey 10

ae Ce ee Seley Tn are eae 11

Reasons relied upon for allowance of writ............ 12

CS Ss ee koe ek ves ok hea ae ee eee 15

WHEN 5 bcos EN ok ve eek LRN eee 16

UnitTEep States Statutes CITep.

Title 28, Chapter 9, Section 344 USCA.............. 2

Title 45, Federal Employers Liability Act, USCA

Sections 51 to 59, inclusive....................... 2

TABLE OF CASES.

Appalachian Electric Power Co. v. Hale, 133 Va. 416,

RED Ee Big Fi a ee eh ae oo ea oe 14

Atlantic Coast Line v. Wheeler, 147 Va., 1, 1382 S. E.,

BAF. bes Fo ei we es ba 2 8 Re : 14

Adams v. G. C. Murphy Co., 174 E. S., 794........... 14

Bailey v. Central Vermont Ry. Co., 87 Law Ed., Adv.

Cs Te, Ry SU BN og 5s on es ee ew tia es 13

Depre v. Pacific Coast Forage Co., 259 Pac., 720....... 14

Doney v. Minn. Mfg. Co., 161 Minn., 240............ 14

E.I. DuPont DeNemours & Co. v. Brown, 129 Va., 112,

i 5. Se Rr rr rr em rere ee 13

Hughes v. Trustees St. Patrick’s Cath., 156 N. E., 665. . 14

Jones v. Rhinehart & Dennis Co., 168 8. E., 482....... 14

Lynchburg Traction & Light Co. v. Gordon, 123 Va., 198,

OR ik Se so a kpc s Skeet we ew se tee en ee 13

—9438

‘

al a sk ‘ PASSE ROME TAS II OS AG TSE AN eT

il INDEX

Owens v. Union Pacific Ry. Co., 87 Law Ed., Adv.

Opin. No. 18, page 1221... .... sec c ee eee eee

Roberts v. Southern Ry. Co., 1388 8S. E., 658...........

Tiller v. Atlantic Coast Line Ry. Co., 87 Law Ed., Adv.

Opin. No. 8, pame 454... 2.0 eee ene

Thacker v. Klotz, 175 Va., 267, 7S. E., (2d) 883......

Turner v. Richmond & R. R. Ry. Co., 121 Va., 194, 92

RRR ES ag t A ree lan eee R eee re aE ES

Texas & P. R. Co. v. Behymer, 189 U.S., 468. .

Thornton v. Downes, 177 Vt., 451, 148 E. (2d) 345...

Washington & G. R. Co. v. McDade, 135 U.S., 554, 572,

Ee &. SSG rere eer eee ne ee

Wilkens v. Davis, et al., 158 Va., 763, 164 S. E., 650...

PRETORIA IY IN TY Se aE

Seer re

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SUPREME COURT OF THE UNITED STATES

3

3 OCTOBER TERM, 1943

3

3

No. 530

3

‘ NELLIE FAYE BEAMER, Apmrvisrrareix or THE stave

4 oF Rogpert P. Beamer, Decrease,

4 Petitioner,

Versus

THE VIRGINIAN RAILWAY COMPANY, a Corporation.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF APPEALS OF THE STATE

OF VIRGINIA AND BRIEF IN SUPPORT THEREOF.

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the United States:

i

Your petitioner, Nellie Faye Beamer, Administratrix of

the Estate of Robert P. Beamer, deceased, respectfully

prays for a Writ of Certiorari herein to review a certain

final decision of the Supreme Court of the State of Vir-

ginia, being the highest Court in said State, in the above

entitled action, the opmion and decision of said Court

having been rendered and filed on the 14th day of June,

1943, and a petition and re-hearing which was after being

entertained and considered by said Court, denied October.

14, 1943; by which said decision the said Court affirmed

the. SE eenerreereriatmenae: .

al EEE ETE RI NSC GE BLP AN IER ERS PIE SNR RT Re, WR

RN ELEN SOR OS EH ecco recep ol

ca «Sy PO OCEAE lie RE Raa UO We AE 8 RUIN ME Bh OB OND ISS “ACERT 1 REEL

the judgment of the Cireuit Court of Giles County, Vir-

vinia, in setting aside a verdict of a jury in favor of said

Administratrix for $10,000.00,

The Cirenit Court of Giles County did not take cognizance

of the 1939 Amendment to the Federal Employers Liability

Act, although plaintiff's decedent was injured and died on

the 26th day of July, 1940, and set aside the verdict of the

jury upon the sole ground that the deceased assumed the

risk of employment as a matter of law. The Supreme

Court of Virginia affirmed the decision of the Cireuit Court,

but held that ‘‘the other allegations of negligence were either

not sustained by the evidence, or were not the proximate

cause of the death of Mr. Beamer.’’

II.

The jurisdiction of this Court is invoked under Title 28,

Chapter 9, Section 344, U.S. C. A. (Judicial Code, Section

237, amended), and this action was brought under Federal

Employers Liability Act, U. 8S. C. A. Title 45, Sections 51

to 59, inclusive.

A question for jury determination is presented as to

‘“negligence’’ when it appears from the evidence that an

employee, subject to the benefits of the ‘Federal Employers

Liability Act’’, is required to work at a place in a power

plant replacing an expansion joint next to the ceiling of a

basement, 30 feet high, where the temperature is 132° F.,

where the pipes are dusty and dirty and too hot to touch,

where there is no manual or mechanical ventilating system

except an air hose not feasible to use because of the accumu-

lation of dust and dirt, where the place of work is not in-

speeted and has no means of determining the condition of

the air and heat, and, where such employee is required to

finish the task before a certain time, dies as a result of

working in such excessive heat.

RAS On As -P4e> oenemaeee — a

2 ¥ Y t AGOGO IA RTE GE RR LM 185 ay a

oo

It is for the jury to say, under such circumstances, whether

or not the employer has performed his duty to use reason-

able care in furnishing his employee with a safe place to

work.

Evidence of general custom of a trade or business en-

vaged in similar work under like circumstances is never

conclusive but is proper evidence to be considered along

with all the other evidence, facts and circumstances in the

ease as to whether or not the defendant is guilty of neghi-

genee.

The jury decided that the defendant was negligent; the

trial Judge who heard the case and saw the witnesses

decided the defendant was negligent, but set aside the ver-

dict on the grounds that the deceased assumed the risk. A

risk can only be assumed where there is some negligence

on the part of somebody. The Supreme Court of Vir-

vinia affirmed the judgment of the lower Court in setting

aside the verdict of the jury on the theory of non-negligence.

Such decision is not in accord with the applicable decision

of the Supreme Court of the United States. The plaintiff

has been denied her rights under the Federal Employers

Liability Act. The decision of the Supreme Court of Ap-

peals of Virginia in this case, not being in accord with the

decision of the Supreme Court of the United States, will

create a diversity of decisions in the lower Courts and will

thereby seriously affect the administration of the law in

other similar cases.

TIl.

Summary and Brief Statement.

Nellie Faye Beamer, Administratrix, brought an action

against The Virginian Railway Company, a Corporation,

for the sum of $50,000.00 damages, based upon the wrong-

ful death of plaintiff’s decedent, Robert P. Beamer, an em-

ployee of The Virginian Railway Company, engaged in the

Komen rene a - —

SEAT TERED ERE BA ESSER ganna oN Be a aan REE ate

Eee OT RRNA a

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business of Interstate Commerce, and covered under the

provisions of Federal Employers Liability Act.

The jury returned a verdict in favor of the plaintiff for

the sum of £10,000,00, The Judge of the Cireuit Court of

Giles County, Virginia, set aside the verdict of the jury on

the ground that the plaintiff’s decedent assumed the risk

of his employment, as disclosed by the evidence, as a matter

of law, and entered up judgment in favor of the defendant;

the Supreme Court of Virginia affirmed this judgment on

the grounds of non-negligence.

Robert P. Beamer, an employee of The Virginian Rail-

way Company, at its power plant at Narrows, Virginia, died

from working in extreme heat on July 26, 1940, while on

duty at the plant. Immediately prior to Mr. Beamer’s

death, and on the morning that he went to work, he was in

sound, perfect physical health. He fully enjoyed life,

romped and played with his six children, four of whom

were adults, and never missed a day’s work except on oc-

casions of sickness in his family.

Mr. Beamer had been employed as a steam-fitter for The

Virginian Railway Company at its power plant at Narrows,

Virginia, for approximately fifteen years. Mr. Cleve

Bowser, the General Foreman over the entire plant, gave

instructions to Mr. Beamer as to where and what work he

should do and Mr. Beamer would go ahead and do it.

Description oF Power PLANT AND GENERAL WorkING

ConDITIONS.

The Virginian Railway Company operated this power

plant at Narrows, Virginia, for the purpose of generating

electricity to haul heavy loads of coal in Interstate Com-

merece between Mullens, West Virginia, and Roanoke, Vir-

vinia. This electricity is eenerated through four turbines

heated with steam. These turbines are located in a large

building approximately eighty feet wide and one hundred

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or

fifty feet long. There are two floors, the basement floor

and the so-called turbine floor. These turbines are set in

the turbine floor, and this floor is approximately thirty

feet above the basement floor. The turbine floor is about

four or five feet above ground level. This leaves approxi-

mately twenty-six fect of the basement below ground level.

There are no outside windows to this basement and no

mechanical ventilating system. The upstairs room, spoken

of as the turbine floor room, has many windows on its sides

and air ventilators in the top. There are openings through

the floor of the turbine room between turbines Nos. 1 and

2 and between turbines Nos. 3 and 4. There was a ther-

mometer on the turbine floor which gave the temperature

of that room at all times, but there was no thermometer in

the basement room. No temperature reading was ever

taken in the basement floor room and in particular no

temperature was ever taken at the place where Mr. Beamer

was working immediately prior to his death. Mr. Beamer

and no other person had ever done this kind of work for a

period of two hours at this particular place. A great amount

of dust accumulated on the pipes and other parts of the

machinery in the basement room and the pipes and tur-

bines were dusted about once every two years. The tem-

perature of the basement room, at the place where the de-

ceased was required to work at hard physical labor from

about one-thirty, p. m., to three-thirty, p. m., was 132 de-

erees Fahrenheit, and there was very little, if.any, circula-

tion of air.

Nature or Work tHe Deceasep Was Dornc IMMEDIATELY

Prior to His Deatn.

Mr. Bowser, General Foreman, instructed Mr. Beamer

that turbine No. 1 was not functioning properly and directed

him to go over turbine No, 1 on the day of the death of Mr.

Beamer,

YEN Ret NRO MS CFIA IND RRR IG ay

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Shortly after noon of that day, Mr. Beamer reported to

Mr. Bowser that he had found a large expansion joint in

the heater line broken in turbine. Mr. Beamer stated to

Mr. Bowser that if he repaired that joint he would have to

work overtime, that it would take him longer than four

o’clock that afternoon to finish it. Employees were not

permitted to work overtime without the consent of their

Foreman. Mr. Bowser directed Mr. Beamer to go into the

storeroom and get a new joint because by using the new

joint he could finish it by four o’clock. Mr. Beamer told

his helper, Mr. Wimmer, that he had to finish the expansion

joint by four o’clock. This expansion joint which was be-

ing replaced was located next to the ceiling of the base-

ment floor. Mr. Wimmer got to this expansion joint by

going through a panel about twenty-eight inches by fifty

‘nches on turbine No. 1, but Mr. Beamer, being a large

man weighing approximately two hundred twenty pounds,

went down the elevator, up a stairway and -limbed up to

the pipes on a small platform located next to the ceiling to

do this work. An air hose was available for the use of Mr.

Beamer and Mr. Wimmer, but was not used because of the

large accumulation of dust. The pipes were so hot that you

could not lay your hand on them. There was very little

circulation of air or no ventilation at the place Mr. Beamer

and Mr. Wimmer were required to work. The temperature

was 132 degrees Fahrenheit. They continued to work under

these conditions in putting in this new expansion joint for

approximately two hours. They went outside on two dif-

ferent occasions to cool off. All employees were allowed

to go outside to cool off when they wanted to. Mr. Wimmer

did not realize the heat in the place where they worked

these two hours was so intense. He did not know it was

so hot in there until after he took the temperature,

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At about twenty minutes to four o’elock, they completed

the work on the expansion joint and Mr. Beamer handed

the tools through this panel opening to Mr. Wimmer. Mr.

Wimmer went on to put up the tools and Mr. Beamer then

went on to the tool room where he fell and died about twelve

or thirteen minutes to four o’clock. Two of The Virginian

Railway Company doctors were called but were not avail-

able. However, later Dr. Newton, one of The Virginian

Railway Company doctors, did arrive at the plant and

viewed the body of Mr. Beamer. Dr. Newton testified that

in his opinion, ‘‘the working in extreme heat that the ex-

treme heat was the cause of his death.’’? Dr. Carr, the

other doctor of The Virginian Railway Company, was of

the opinion that the intense heat and long hours of work

played an important part in Mr. Beamer’s death.

Qvorations From Evipence Supporting THE ForeGoin

Facts.

, Mr. Bowser, the General Foreman, testified (R. 118),

‘‘T would tell him (Mr. Beamer) where a leak or change

should be made and he would go ahead and do it.’’ Mr.

Bowser also testified (R. 120), that Mr. Beamer reported

to him that he found a large expansion joint broken in tur-

bine No. 1; that if he, Mr. Beamer, repaired thé joint he

would have to work overtime; that it would take him longer

F than four o’clock to finish it. He, Bowser, directed Beamer

c to get a new joint so that he could finish by four o’clock.

Mr. Wimmer testified on cross examination (R. 56) :

““Q. It was Mr. Beamer’s own idea to finish it, was

it? There was nobody pressing him to finish it, was

there?

‘“A. T don’t know who told him, but he told me that

he had to finish it by quitting time at 4:00 o’clock,’’

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Mr. Wimmer (R. 59) testified that Mr. Beamer could not

work overtime without permission of Mr. Bowser or an-

other foreman. Mr. Wimmer (R. 48-49) stated:

‘‘Q, Did you and Mr. Beamer use that air hose that

day?

‘*A, No, sir.

‘“‘Q, Had you ever used that air hose right in that

particular place where you all were working on the ex-

pansion joint?

‘A, No, sir, we never used the air hose up under

there.

“<Q. What was the condition of these pipes there at

the place you were working, with reference to dust

and filth?

‘“A, Well, it was dusty and dirty up in there, and

these pipes were covered with this asbestos.

“(, And dust would stick on them, would it?

‘cA, Yes, sir.

“Q. What would have been the effect, if any, of at-

tempting to use that air hose in there where you were

working on the expansion joint, with that condition

with reference to dust?

‘©A, Tf you took the air hose and stuck them in there,

and aimed to work there at the time, it would be so

dusty, you could not do it. If you had time to take

an hour or so to blow it out, it would be all right, but

if you stuck it in there and would go in there to work,

it would be so dusty, you could not stay in there.

“<Q, Were you all the janitors in there?

‘©A. No, sir, we had a colored fellow that did the

sweeping in the turbine room, but didn’t nobody clean

out or blow it under there.

“<Q, Nobody cleaned or blew out the dust in this

particular place where you were working?

vat © No, sir.”’

Mr. Bowser testified (R. 126-127) that the dust is blown

off the machine when it is open for inspection; that the

machines are open for inspection about every two years.

9

‘‘Q. Did you ever inspect to see if it is kept clean

during that time?

‘*A, No, sir.”’

Heat.

Mr. Wimmer testified (R. 61) with reference to the place

where he and Mr. Beamer were working:

‘A, The pipes were hot up there.

‘‘Q. How hot were they?

‘‘A, They were so hot you could not touch them.

* * * * * * ®

‘“‘Q. I believe you stated that it was 132 degrees

Fahrenheit at the time you went there to take the

temperature with Mr. Shands. Is that right?

A, Yes, sir.

‘‘Q. Was it any hotter at that time than when you

quit working, to the best of your judgment?

‘A, No, sir, it was not any hotter; I should say it

was about the same.’’

Mr. Wimmer testified (R. 51):

‘“‘Q. At the time you and this other gentleman that

you have named took this temperature—Mr. Shands—

took the temperature and found it to be 132 degrees

Fahrenheit, did you realize it was as hot in there as it

actually was? é

‘©A. No, sir; I knew that I was awfully hot, but I

didn’t know that it was that hot until we took the

temperature.

‘““Q. Who was Mr. Shands?

‘*A. He is the electrical foreman there.’’

Mr. Wimmer further testified (R. 49):

‘‘Q. What was the condition there in that place

where you all were working at the time you took the

temperature, with reference to the condition it was at

the time you all were doing your work there and left

that place?

PARLE TOE Bi Rl OE Bi EERE LING OES BEE EE OIE ALL OGL ELE RE LEB DERG LE LER LEENA GESTED LIE

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‘A. Tt was in the same condition, just like it was

when we was under there.’’

Mr. Wimmer testified (R. 47):

‘<Q, What was the condition of his clothing with ref-

erence to perspiration or otherwise?

“A. It was wringing wet with sweat. I was hot

and he was, too.’’

VENTILATION.

Mr. Wimmer testified with reference to the ventilation

where he and Mr. Beamer were working (R. 44):

“Q. What was the condition of the ventilation in

there at the time you all were working?

‘A. Well, it was awfully hot in there. There was

not much ventilation in there where we were working.”

Mr. Bowser testified (R. 125):

““Q. Do you have a thermometer in the basement

room?

‘©A. Not to measure the temperature of the air.

‘“Q. Do vou ever measure the temperature of the

air in the basement room?

‘©\. We never made any record of it.

‘““Q, Have you ever tested the air in there as to the

quantity of oxygen and heat in the basement room?

‘*A, No, sir.

““(). Have you ever measured the air and taken the

temperature at the place where Mr. Beamer was

working on the expansion joints?

‘A, No, sir.

“¢Q,. You knew it was a hot place, didn’t you?

‘A, Yes, sir.

“<Q. And you knew in the summer that it would get

extremely hot in there, didn’t you?

‘SA, Yes, sir.

“«Q. Did you, as foreman, ever do anything to cool

the basement, such as putting exhaust fans in there?

“*A, No, sir.

il

‘“‘Q. Did you ever recommend that that be done?

‘A, No, sir.’

Mr. Bowser testified (R. 132) :

‘‘Q, What makes the air circulate from the back of

turbine No. 1 where there is no opening?

‘‘A. It would not circulate unless you use some me-

chanical means to circulate it.’’

Mr. Fox testified (R. 156) :

‘<Q. Mr. Beamer was repairing turbine No. 1, was

he not?

‘‘A. Yes, sir.

‘“‘Q. And there was no need to be efficient there, be-

cause it was shut down on that turbine?

‘A. Yes, sir.

‘“‘Q. And there was no reason why he couldn’t have

sufficient ventilation, was there?

‘sh Be, oe.”

Mr. Blake testified (R. 96) :

“‘Q. And your idea is that there is no ventilation

and that is derived from the fact that you saw the

place up there in the pipes from down on the basement

floor and you don’t know what was above that place

except what you were told. Is that right?

‘A. My idea was that there was no ventilation and

I saw no way for ventilation to get there.”’

IV.

The Questions Presented.

1—Do the facts in this case present a question to be de-

termined by a jury, or only by the Courts?

2Has the plaintiff been denied (relief) a substantive

right given to her under the Federal Statutes known as The

Federal Employers Liability Act?

ool

re?

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3—Is the opinion of the Supreme Court of Appeals of

Virginia, in this case, at variance with laws as established

by the opinions of this Honorable Court?

4-—Whether or not part of the opinion of the Supreme

Court of Appeals of Virginia recognized that the doctrine of

assumption of risk had been abolished, but in other parts of

the opinion the Court still applied the doctrine of assump-

tion of risk as well as contributory negligence, Quoting

from the opinion: ‘‘He, (Beamer) knew the place was hot.

The efficiency of the plant could not have been maintained

and the heat eliminated. Employees are often called upon

to work in places that are hot and dusty. It was not hotter

where Mr. Beamer was working than is required by stand-

ards of good practice for such plants.’’

5—The Supreme Court of Appeals of Virginia errone-

ously held it to be the duty of the deceased to clean out the

dust and dirt before going to work on the expansion joint;

however, the undisputed evidence discloses it to be a fact

that the deceased could not have completed his task and also

cleaned out the dirt and dust within the time allowed by

the Foreman to complete this specific task.

6—Whether or not the evidence of the plaintiff was ig-

nored by the Court in its opinion wherein the Court held

that there was no evidence of negligence on the part of the

defendant.

V.

Reasons Relied Upon for the Allowance of the Writ.

First:

The Cireuit Court of Giles County, Virginia, erroneously

set aside the verdict of the jury and entered up judgment

for the defendant on the theory that the defendant assumed

the risk of his employment, (R. 41, in Bill-of-Exceptions

13

No.1). The said Circuit Court in effect held that the doe-

ed trine of assumption of risk had not been abolished as of the

date of the injury on July 26, 1940.

ne The Supreme Court of Appeals of Virginia affirmed the

of lower Court, but on different grounds, holding there was

of non-negligence on the part of the defendant. This was er-.

1p- ror, and in conflict with the following decisions:

ng Tiller v. Atlantic Coast Line Ry. Co., 87 Law Ed. Ad-

ot. vance Opinions No. 8, p. 404;

ied Bailey v. Central Vermont Ry. Co., 87 Law Ed. Advance

on Opinions No. 16, p. 1030;

ter Owens v. Union Pacific Ry. Co., 87 Law Ed. Advance

nd- Opinions No. 18, p. 1221;

ii. I. Dupont De Nemours & Co. v. Brown, 129 Va. 112,

niet 105 S. E., 660;

the Thacker v. Klotz, 175 Va. 267, 7S. KE. (2d) 883;

nts Turner v. Richmond & R. R. Ry. Co., 121 Va. 194, 92

Fact S. E., 841;

sing Lynchburg Traction & Light Co. v. Gordon, 123 Va.

hy 198, 96 S. E., 195.

SECOND:

| ig- The Supreme Court of Appeals of Virginia erroneously

held held, in substance and effect, that evidence of general custom

the of a trade or business engaged in similar work, under like

circumstances, is conclusive. We understand the law to be

that evidence of general custom of a trade or business en-

t vaged in similar work under like cireumstances is never

: conclusive, but is proper evidence to be considered along

with all the other evidence, facts and circumstances in the

usly B Case as to whether or not the defendant is guilty of negli-

ment g Sence-

:med Roberts v. Southern Ry. Co., 138 8. K., 658;

Hons Texas & P. R. Co. v. Behymer, 189 U.S., 468.

14

Trirp:

The Supreme Court of Appeals of Virginia erroneously

held that although it is disclosed by the evidence that the

pipes to be repaired were dusty, that the ventilation around

them was poor and that it was very hot, that these condi-

tions do not constitute actionable negligence under the cir-

cumstances disclosed in this case.

We believe the uncontradicted evidence clearly shows that

the place in which Mr. Beamer was required to work was

dirty and dusty, with a temperature of 132° F., with prac-

tically no circulation of air, and that he was required to

complete a definite task before four o’clock to prevent over-

time work; that under such conditions it was physically

impossible to clean up the dust and dirt and to perform

the task within the time allowed by the Foreman. Any

negligence of the defendant which caused or contributed in

whole or in part to plaintiff’s injury, is actionable negli-

gence.

Washington & G. R. Co. v. McDade, 135 U. S., 554, 572,

34 Law Ed. 235, 241;

Wilkens v. Davis, et al., 158 Va., 763, 164 S. E., 650;

Appalachian Electric Power Co. v. Hale, 133 Va., 416,

113 S. E. 711;

Thornton v. Downes, 177 Vt., 401, 14.8. EK. (2d) 349;

Atlantic Coast Line v. Wheeler, 147 Va., 1, 182 5. K.,

517 ;

Adams v. G. C. Murphy Co., 174 S. E., 794;

Jones v. Rhinehart & Dennis Co., 168 S. E. 482;

Depre v. Pacific Coast Forage Co., 259 Pacific, 720;

Doney v. Minn. Manfg. Co., 161 Minn. 240, 201 N. W.,

305;

Hughes v. Trustees St. Patrick’s Cath.. 156 N. E., 665.

15

FourTH:

The Supreme Court of Virginia erroneously held that the

other negligence complained of was either not sustained by

the evidence or was not the proximate cause of the death

of Mr. Beamer. The evidence is conclusive by two of the

physicians of the defendant, The Virginian Railway Com-

pany, that performing hard, manual work in excessive heat

‘aused the death of Mr. Beamer. All of the attending cir-

cumstances surrounding such employment, and every act of

omission and commission must be considered together and

not as separate, distinct, abstract fact or facts. The fact

that the place was dusty and dirty, was extremely hot,

that there was no ventilating system, that it was not in-

spected, that there was no means of testing the temperature

or testing the air for oxygen or otherwise, and the fact

that a definite task was to be performed, within a definite

period of time, and evidence of the incompetency of the

Foreman, must all be considered together, and the jury

is the arbiter of all these questions.

Conclusion.

It is therefore, respectfully submitted that this case is

one calling for the exercise by this Court of its supervisory

powers in order that the decision and judgment of the

Supreme Court of Appeals of Virginia may be made to

conform to the decisions and principles announced by this

Court, and that to such an end a writ of certiorari should be

eranted and this Court should review the decision of the

Supreme Court of Appeals of Virginia, and finally reverse

it.

Cartron Custer SANDERS,

Counsel for Petitioner.

16

Srare or West VircINiA,

County of Raleigh, to-wit:

Carlton Custer Sanders, of Beckley, West Virginia, be-

ing first duly sworn, upon his oath says that he is a practie-

ing attorney in the Supreme Court of the United States of

America, having been duly admitted and qualified on the

15th day of February, 1934; that he is familiar with the

facts set forth in the foregoing petition and record, and

that in the opinion of this affiant, a writ of certiorari should

be granted and that this Court should review the decision of

the Supreme Court of Appeals of Virginia, and finally re-

verse it.

CarLtton CusTER SANDERS.

Taken, subscribed and sworn to before me by Carlton

Custer Sanders, this the 9th day of December, 1943, in my

said County of Raleigh, State of West Virginia.

My Notarial commission expires October 5, 1990.

Lean Toney Tratt,

Notary Public.

(9438)

ME SERA LIOR tater PGP RPL Ms AHMET