Petition for a Writ of Certiorari — Chicago & Eastern Illinois Railroad v. Waddell

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IN THE op

SUPREME COURT OF THE UNITED STATES

Octoser Term, A. D. 1943

No. ©

CHICAGO & EASTERN ILLINOIS RAILROAD

COMPANY, «a Corporation,

Petitioner,

vs,

JAMES Kk. WADDELL,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO BE

ADDRESSED TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE SEVENTH

CIRCUIT, AND BRIEF IN SUPPORT THEREOF.

Epwarp W. Rawtins,

77 West Washington Street,

Chicago, Llinois,

Counsel for Petitioner.

James F. Wricnt,

Fay Warren Jounson,

Of Counsel.

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Sunimary and short statement of matter involved,

Statement of basis of jurisdiction ...

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Questions presented

Reasons for allowance of writ bet ope ot

IE esas San soa den csc see cene essen ennnoents

Brief in support ...........—......-------------..-.0:--- eens

SUMMARY OF ARGU MENT,

On a charge under the F.E.L.A. that a rail-motor

ear derailed with plaintiff due to a defect in the

track or roadbed of defendant at a publie highway

crossing, a verdict against defendant was rested on

conjecture. Secondly, in event of a defeet therein,

there was no evidenee that defendant had actual

or constructive knowledge thereof, or a reasonable

time to discover and remedy such defect. Such

defenses were flatly denied defendant as matters of

law.

Tanie or Cases Crrep.

tchison, Topeka & Santa Fe R. Co, v. Saxon, 284

a a samntenseenmaedbckdrenceWanemereabes

Atlantic Coast Line R. Co. Wasi, 285 U. S. 143

Bailey v. Central Vermont R. Co., 319 U.S. 350.

Brady v. Southern R. Co., Sup. Ct. Dee. 20, 1948-..

Chiceaeco & N. W. R. Co. v. Payne, 8 F. (2d) 332,

Sth CCA

PAGE

Ro)

11

Taspie or Cases Crrep (Continued).

Chicago & N. W. R. Co. ve Struthers, 52 BF. (2d) 88,

Sth Cote xe ae See gentenial, &,

Dade v. Boston & Maine R. Co. 30 Ath (2d) (N. HL.)

485 pee Si Be caee Bi Moet OR tated

Huff v. Hlinois Central R. Co., 362 TIL 95 Ter

Morey v. Maine Central R. Co., 142 Atl (Me.) 485

Nelson v. Southern Railway Company, 246 U.S. 258

O’Mara v. Pennsylvania R. Co. 95 FL (2d) 3382, 6th

CCA ok

Patton v. Texas & Pacific R. Co., 179 U. S. 658.

Patton v. Texas & Pacifie R. Co., 179 U.S. 658

Pennsyvivania R. Co. v. Chamberlain, 288 U.S. 333.

Seaboard Air Line Co. v. Horton, 283 U.S. 492

St. Louis, 1. M. & S. R. Co. v. Ingram, 187 S. W.

(Ark.) 462, 453, aff’d 244 0. &. G4v....z............. ;

Tennant v. Peoria & Pekin Ry. Co., 87 L. ed. 382

United States v. Ross, 92 U.S. 2

PAGE

12, 13

, 18, 14

7,12

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroper Term, A. D. 19438

CHICAGO & EF ASTIERN ILLINOIS RAILROAD

COMPANY, a Conporatrion,

Petitioner,

ves,

JAMES FE. WADDELL,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO BE

ADDRESSED TO THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

To the Honorable Chief Justice and Associate Justices of

the Supre me Court of the United States.

Your petitioner, the Chieago and Eastern Hlinois Rail-

road Company, a corporation, hereinafter called defendant,

prays for Writ of Certiorari to review a judgment against

it in faver of respondent, James FE. Waddell, hereinafter

referred to as plaintiff, as more particularly follows:

Summary Statement of Matter Involved.

A review is sought of the judement of the Seventh Cir-

cuit Court of Appeals entered April 25, 1944 (Ree. 89),

9

which judgement became final June 6, 1944 on the overrul-

ing of defendant’s petition for rehearing (Ree. 105). The

judgment affirmed a judgment of the District Court for the

Northern Distriet of Hllinois, Eastern Division, entered

on a verdict of the jury in favor of plaintiff in the sum of

$25,000 (Ree. 67).

The opinion of the Honorable Circuit of Appeals is in

the record (Ree. 86-88).

The case for plaintiff was brought under the Federal:

Emplovers’ Liability Aet for personal injuries to plaintiff,

a signal maintainer, as sustained in a derailment of a com-

pany furnished rail-motor car at a railroad-public highway

crossing while on his way to a place for signal work. It

was charged defendant, an interstate railroad carrier, per-

mitted dirt, gravel and rocks to be and to remain in the

space of about two inches between crossing planks and the

rails, where flanges of wheels of cars went as trains and

cars proceeded over the crossing, whereby the wheels of

plaintiff’s motor car came in contact with the said material

to derail it (Ree. 2, 3). The acts of negligence charged

were the defendant carelessly permitted and allowed dirt,

eravel and rocks to become embedded in the space, failed

to remove same, and failed to warn and inform plaintiff

of the presence of said dirt, gravel and rocks between the

rails and the planking on the crossing (Ree. 4).

Defendant traversed all material allegations of negli-

eence, denied the acts of negligence charged and notice and

the issues were thus presented (Ree. 5, 6).

The pathway of the wheel rim, or flange, properly, is

about one inch below the ball (top) of the rail, and called

flangeway (Ree. 17).

A eut of the general type of plaintiff’s rail motor car,

minus windshield, appears at page 12 of the Record. It

weighed about 380 pounds (Ree. 11); with the windshield it

was about 5 feet high overall, with the driver on a flat top

seat about 35 feet up from the wheel base (Ree. 12),

with flanged wheels for railroad tracks, and hand = rails

extending front and rear to lift the ear on and off the

track (Ree, 12). a

The railear was in good working order on the day of

the accident (Ree. 10).

The accident happened May 4, 1942 (Ree. 15), about 8:30

in the morning (Ree. 36).

The crossing in question was a plank crossing on the

county line of Shelby and Effingham counties, Hlinois, on

the Chicago-Evansville route of defendant (Ree. @, 13).

Photographs of the tracks, roadbed and crossing appear at

pages 27, 28 of the Record. The highway was wash gravel

over a dirt road (Ree. 18), with crossing high on a little

incline (Ree. 138).

Plaintitf did not say that the flanges of his car wheels

struck any rock or other material in the crossing flange-

way. He said only that the right front wheel of his rail

car rose up on the crossing, the vehicle turned sideways,

and plaintiff with it, slid and creeped down the rails (Ree.

14,15). It went about fifty or sixty feet from the crossing,

where it stopped, locked cross-wise on the rails (Ree. 25).

It dragged plaintiff past a switch point, which cut his lett

foot so severely (Ree. 15) that it had to be amputated

Ree, 16).

Plaintiff's rail ear eame out of a mishap at the crossing

with its right front wheel (stub axle) snapped off (Ree.

2, 41), its protruding hand rails broken (Ree. 12, 41)

aud windshield broken (Ree. 41).

Four witnesses from the countryside testified for plain

uff. Kach of them observed the crossine atter the

accident and estimated dirt, gravel or other material

nthe flangeway as follows: Frank Musser, inch or

4

inch and a quarter from the top of the east (right hand)

rail (Ree. 32); his wife, Jennie Musser about an inch

from the top of the rail (Ree. 38); their son, Earl Musser,

a fill of dirt and stones as high as flanges on railroad

trains mashed it down (Ree. 35); and Roy Sliter’ said

the flangeway was pretty well packed low-down and the

packing came to about an inch and a half from the top of

the rail (Ree. 26).

Plaintiff said the flange on his ear wheels was about an-

inch deep, same for locomotives and box cars (Rec. 1).

There was no indicia of contact between dirt, gravel or

rock and ear wheel flanges at the crossing. On this, the

only witness, the local township commissioner of highways,

C. W. Turner, looked at the crossing after the accident,

in the afternoon, and he said there were no gravel grind-

ings or stone dust at the crossing (Ree. 58).

Earlier in the morning than plaintiff, regular rail traftie

went over the crossing in ordinary course: Train 124, a

five car passenger went north, and Train 125, another five

cay passenger train went south, over the crossing (Ree.

38, 39). The section crew of three men on a rail motor ear

went north over the crossing just ahead of plaintiff (Ree.

46) and crew members said the flangeway was clear and

their wheel flanges touched nothing in the crossing flange-

way (Rec. 46-49). Plaintiff said he crossed the crossing

for sixteen or seventeen vears in his work, an average of

twice weekly, and that he was wholly familiar with the read

and crossing (Ree, 20).

There was no previous complaint on the crossing condi-

tion from him.

Plaintiff said that lots of times he had seen the section

men clean out crossings on his way; that dirt, highway chaff

and ballast would pack like conerete in them (Ree. 14);

and his other witnesses from the neighborhood also. said

they had seen section men clean out this crossing at vari

ous times (Ree. 26, 32, 33, 35), with one of them, Earl

Musser, stating the crossine was cleaned out the last time

he saw it, about three weeks before the accident (Ree. 35).

There was nothing offered to indicate that the crossing

was one to fill up rapidly, or otherwise acquire dirt, gravel

or rocks in the flangeway.

Plaintuf said there was an automobile (Miss Ponster)

crossing the crossing from the east (right) at about the

same time as himself (Ree. 14). He said he saw her ap

proach the crossing and she did not step (Ree. 14): that

he went across the crossing first (Ree. 14): and after she

crossed the tracks, she stopped her automobile and walked

up the track to where he was (Ree. 21, 22).

A secondary line of testimony was developed by plain

tiff that three of his witnesses looked at the Ponsler auto

mobile after the accident and there were no marks on it:

Rov Slifer (Ree, 25). Plaimtifi’s witness Jennie Musser

said there was no repairs to it, only where the dirt was

scraped off when the automobile hit a bank in the road

(Ree. 34). Karl Musser said he heard a motor car coming

down the track and then a erash and he went down to the

crossing (Ree. 35). That he saw the automobile after the

accident and there was no damage done to it, except that

the radius rod between the front wheels, axle hieh. was

bent (Ree. 35).

Basis of Jurisdiction to Review Judgment.

Statute.

“Every common carrier by railroad while engaged

in commerce between any of the several states or

Territories * * * shall be liable in damages to any

6

person suffering injury while he is employed * * * for

such injury * * * or by reason of any defect or insuff-

ciency, due to its negligence, in its * * * track, roadbed

* * * or other equipment’? (49 USCA see. 01, Act of

April 22, 1908, as amended August 11, 1939).

Under the Federal Employers’ Liability Act:

1. Where there is no evidence to support a recovery

for plaintiff, the corollary: denial of a directed verdict.

for defendant-employer is a Federal right reviewable by

the Court.

2. Even after proof of a defect in an employer's tracks

or roadbed, the presumption prevails that defendant was

not aware of it, and defendant must be shown to have had

notice of the defect for a sufficient period of time before

the accident to remove the same, which is a Federal ques-

tion.

3. Without a showing of prior notice, neglect to warn

an employee on a rail motor car of a rock in a flangeway

of a railroad-public highway crossing is neither negligence,

nor a defect in employers’ tracks or roadbed due to its

negligence, within meaning of the terms, which are Federal

questions.

’ Questions Presented.

On a motion to direct a verdict at close of all evidence

(Ree. 68), under the Federal Employers’ Liability Act:

1. May a verdict and judgment for plaintiff rest on

surmise?

2. Where negligence is predicated on the presence of

a rock in the flangeway of a railroad crossing over a pub-

lic, graveled highway, is actual or constructive notice of

the object a condition to liability of railroad-employer for

its presence or non-removal, or neglect to warn a_rail-

motorist employee thereof?

9

3. What is the meaning of, and relation of, negligence,

and defects in track or roadbed, in a railroad-public high-

way crossing flangeway?

Reasons Relied On For Allowance of Writ.

It is submitted the opinion below furnishes a bad prece-

dent within the Seventh Cireuit in) particular and in

administration of the law in general: It uses a method

of surmise and conjecture to arrive at a result. The

hackground of the lower court’s opinion unmistakably

is that the reversal of the lower court’s own opinion in

the Tennant ease (ST L. ed. 3352) meant the use of con-

jecture to arrive at a result. Moreover, the opinion, as a

precedent, tends to impair the functions of the trial judge

and his duty toward each party in a trial.

1. The opinion of the lower court probably conflicts

with an approved interpretation in Sf. Louis, T. M.S. R.

Co., 187 S. W. (Ark.) 452, 453, aff'd Memoranda 244 U.S.

647 on authority of Chicago Junction R. Co. v. King, 222

U.S, 222, Seaboard Air Line Co. v. Padgett, 236 U.S. 668,

Baltimore & O. R. Co. ve Whitaere, 242 U.S. 169); and

probably with Patton v. Texas & Pacific R. Co. 179 U.S.

658, Seaboard Air Line v. Horton, 233 U.S. 492, and Bailey

v. Central Vermont R. Co., 819 U.S. 850 (on the common

law background of the Act in this particular regard), as

well:

“Under * * * while, under the federal statute, the

presumption prevails, even after proof of the defect,

that the railway company was not aware of its exist-

ence; and, until it is shown the railway company knew,

or, in the exereise of ordinary care, should have known,

of the defect, it is not chareed with that knowledge.’’

Moreover the opinion probably conflicts with Nelson vy.

Southern Railway Company, 246 U.S. 258, in that a pos-

8

sible rock entry into a public crossing, railroad flangeway

would not be an actionable defect in the track or roadbed

due to employer’s negligence or one for which there was a

duty to warn plaintiff rail-motorist.

2. The opinion probably conflicts with (nited States v.

Ross, 92 U. S. 281, a civil case, on principles of logic and

evidence in the law as requiring an open and visible con-

nection between the principal and evidentiary facts and

deductions from them, and the law does not permit a de-

cision to be made on remote inferences. With Atchison,

Topeka & Santa Fe Railway Company v. Saxon, 284 U.S.

458, that the inference relied upon may not be used for

substantial support, and speculation and conjecture is in-

admissible to support a verdict. Also probable conflict

with Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333,

infra brief ; Brady v. Southern R. Co., decided by this Court,

December 20, 1943, and in connection with the latter case,

Huff v. Illinois Central R. Co., 362 MM. 95 following Patton vy.

Texas & Pacific R. Co., 179 U.S. 658, on the duty to direet

verdicts under the Act where speculation is used to support

negligence and proximate cause. Also probable conflict

with the Tennant case from this court, Tennant v. Peoria

& Pekin Ry. Co., 87 L. ed. 332 cited in the opinion and mis-

construed, we think.

3. The opinion conflicts with Chicago d N.W. Ry. Co. v.

Struthers, 52 F. (2d) 88 from the Sth Cireuit, in that the

latter court does not regard an accumulation of stones and

eravel in a flangeway as self-evidently dangerous and _re-

quires knowledge that an accumulation might cause a de-

railment for negligence in not causing its removal. Also

to Chicago & N. W. R. Co. v. Payne, 8 F. (2d) 332 from

the same Circuit, to the point that defendant is not an

insurer under the Act. And to O’Mara v. Pennsylvania

R. Co., 95 F. (2d) 762, from the 6th Circuit, on the point

that where the place of injury is used by the general public,

9

the presence of the interfering object is attributable as

well to an agency of strangers as to the defendant, to raise

a speculative issue rather than one determinable upon

reasonable inference from established facts.

Prayer.

Your petitioner respectfully therefore prays that a writ

of certiorari be issued out of and under the seal of this

Honorable Court directed to the United States Circuit

Court of Appeals For the Seventh Circuit, directed to the

end that cause therein No. 8473, entitled James E. Waddell,

Plaintiff-A ppe llee vy. Chicago & KRasteri Illinois Railroad

Company, a Corporation, Defendant-Appellant, may be

brought up and reviewed on the complete, certified record

thereof, and determined by this Honorable Court, as by the

statutes of the United States provided, and that the jude-

ment of the said Cireuit Court of Appeals for the Seventh

Circuit be reversed, and petitioner have other and further

relief as to the Court shall seem meet and proper.

And your petitioner will every pray, ete.

Cnicaco & Eastern [itainois Rarroap

COMPANY, A CORPORATION,

Petitioner.

Epwarp W. Rawuins,

Counsel for Petitioner,

James F. Wricut,

Fay Warren Jounson,

Of Counsel.

PETITIONER'S

BRIEF

—

1]

IN THE

SUPREME COURT OF THE UNITED STATES

Ocrosper Term, A. D. 1943

OR

CHICAGO & EASTERN ILLINOIS RAILROAD

COMPANY, « Corporation,

Petitioner,

us.

JAMES Kk. WADDELL,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI.

The trial court erred in denying and overruling the motion

of the defendant to set aside the verdict of the jury and

to enter judgment in its favor in accordance with its

motion for a directed verdict made at the close of all the

evidence offered on behalf of both plaintiff and defendant

(Rec. 68, 71).

A.

There is no evidence that the defendant violated any duty that

it owed plaintiff, including a duty to warn him of the presence

of dirt, gravel or rocks in the crossing flangeway.

LZ

There is no evidence that the defendant knew of the presence

of any dirt, gravel or rocks at or in the crossing flangeways or

that there had been any such material at the time and place in

question for a sufficient period of time before the accident to

charge defendant with knowledge thereof.

Atlantic Coast Line R. Co. v. Temple, 286 U.S.

145.

Nelson v. Southern Railway Company, 246 U. §..

RQ

JOO.

St. Louis. I. M. & S. R. Co. v. Ingram, 1878. W.

(Ark.) 452, 453, aff'd 244 U.S. 647.

Patton v. Texas & Pacific R. Co., V9 U.S, G98,

Seaboard Air Line Co. v. Horton, 258 U.S. 492.

Bailey v. Ceutral Vermont R. Co., 319 U. S. 350.

Chicago & N. W. R. Co. v. Struthers, 52 F. (2d)

8&8, Sth CCA.

Chicago & NW. R. Co, v. Payne, 8 FB. (2d) 382,

Sth CCA.

O'Mara v. Pennsylvania R. Co. 95 BF. (2d) 382,

6th CCA.

Morey v. Maine Co ntral R. Co. 142 Atl. (Me.) 485.

The opinion reads (Ree. 88): ‘TH appears to he the

further contention that if the derailment was caused by

the condition of the flangeway space, it must have been

on account of rocks recently lodged in the space, of which

defendant had no knowledge. Even so, we think this in

itself would not relieve the defendant.”’

Also in the opinion of the lower court it is stated (Ree.

88): ‘There is ample proof that this flangeway space was

cl

re

st:

partly filled with dirt, ete’. In any event, we submit, this

is only a condition, not a cause.

Moreover, the learned lower court assumes on rock entry

that a precisely-sized rock only would be moved from the

highway into the flangeway, one that would make for

contact and collision, Av railroad is not required to an

ficipate and guard against every possible danger, Morey

v. Maine Ceutral R. Co... 142 Atl. (Me.) 485.

Also, it considers not the moving agency in case of move-

ment of rock, taken for granted. See Atlantic Coast Ling

Rh. Covv. Temple, 285 U.S, 143, on reversal for lack of evi-

dence tending to show defendant was. in any way re

sponsible for the condition which caused a derailment.

B.

There is no evidence in the record tending to sustain the

charges of negligence made against the defendant.

A verdict without substantial support in the evidence and

resting upon conjecture and speculation cannot be allowed to

stand.

United States v. Ross, 92 U.S, 281.

Patton v. Texas & Pacific R. Co.. 179 U.S. 658.

Atchison, Topeka & Santa Fe R. Co. v. Saxon, O84

U. S. 458.

Pennsylvania R. Co. v. Chambe rlain, 288 U. S. 333

Dade v. Boston & Maine R. Co. 830 Atl. (2d) (N.

HT.) 485. i

Huff v. Minos Central R. Co... 362 Ti. 95.

Brady v. Southern R. Co., Sup. Ct. Dee. 20, 1943.

Tennant v. Peoria & Pekin Ry. Co., 87 1.. ed 332.

14

There were no sand or eravel erindings at the crossing

for traces of contact (Ree, 88). Compare Chicago & NW.

R. Co. v. Struthers, 52 F. (2d) 88, 8th CCA.

On this phase of the case too, Dade v. Boston Mame h.

Co.. BO Ath (2d) (N. UH.) 485 was submitted by defendant

as a persuasive authority for application of the Federal

rule under the F.E.L.A. The case is on all fours with the

present case, There, also, it was shown that trueks with

eravel went over the crossing on the day of the accident,

The court said, page 29;

‘It is plain that the foregoing testimony furnishes

no data on which to base a reasonable inference that

the section car was derailed because of stunes on the

rails or in the flangeways. The most that it indicates is

the possibility that the accident may have been due

to such a cause, and this court has repeatedly held

that an issue of fact which depends wholly on con-

jecture cannot properly be submitted to the jury.”’

The same rule is applicable for Tllinois under Jiffy.

Illinois Central R. Co., 362 Tl. 95, following Patton v. Texas

& Pacific R. Co., 179 U.S. 658, ina ease under the Act. Tn

this connection, we submit Brady v. Southern R. Co., Sup.

Ct. Dee. 20, 1943 is decisive for reversal.

In concluding, the lower court gives us a theory, with a

‘strong suspicion it might have heen the case’? (Ree. 88)

of a collision between plaintiff's motor car and an automo-

bile as the cause of the derailment. Instead of a theory,

defendant raised the point that the undisputed physical

damage to the rail car, not incident to an upright stay on

the rails, wheel, windshield and extended hand-rails broken,

killed a theory based on inferences of rock interference in

15

the flangeway. There was physical damage to the auto

mobile, too (Ree. 34, 30).

Also, to keep the record straight, there is no support in

the record for the statement in the opinion that plaintiff

“expressly denied that his car collided with an automo-

bile’ Plaintiff's case here stands as in Pennsylvania R,

Conv. Chamberlain, 288 U.S. 383. 77 1. ed. S19, S24, a case

based on inferences fails on proof of undisputed faets in

consistent with such inferences, for the inferences vanish.

Respectfully submitted,

Kpwarp W. Rawuins,

Counsel for I titione v.

James EF. Wrient,

Fay Warren Jonnxson,

Of Counsel,

+ OF NRE REN Wo) cee A Oe nem

Supreme Court of the United States

Ocroser Term, 1044.

No. 318

CHICAGO & EASTERN ILLLINOIS RATLROAD

COMPANY, a corporation,

Pi titione vs

US.

JAMES E. WADDELL,

Re sponde nt.

ANSWER TO PETITION FOR WRIT OF CERTIORARI.

Royat W. Irwin,

160 North La Salle Street,

Chicagwo, Ilinois,

Attorney for Respondent.

INDEX.

The negligence of petitioner .......................

Lack of basis for jurisdiction ......................

The verdict does not rest on conjecture ..............

Cases Crrep.

Chicago & Northwestern Railway Co. v. Struthers, 52

a ge: lk Re eR ie Se

Christian v. Boston & M. R. R. Co., 109 Fed. (2nd) 103

Rules of the Supreme Court of the United States,

MEE Uk caA AGMA CAS ERC ESS SG Mute Pav sie weeks

PAGE

6

—

IN THE

Supreme Court of the United States

Octoper Term, 1944.

No. 318.

CHICAGO & EASTERN ILLINOIS RAILROAD

COMPANY, « corporation,

Petitioner,

vs.

JAMES EB. WADDELL,

Respondent.

ANSWER TO PETITION FOR WRIT OF CERTIORARI.

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States:

The respondent, James I. Waddell, for answer to the

petition for writ of certiorari says:

The Negligence of the Petitioner.

This was an action to recover damages for personal in-

jury brought under the Federal Fimployers’ Liability Act.

Waddell, the respondent, was employed by the railroad

company as a signal maintainer. At the time of the ae-

cident he was riding on a small motor ear which was being

propelled on the railroad tracks across a public crossing.

Respondent claimed that the defendant was negligent

in permitting gravel and dirt to accumulate in the flanee-

way over the public crossing and that the wheels of the

motor car struck against rocks and dirt in the flangeway

Which caused the motor ear to derail.

There was an open space between the rail and the planks

Bee

9

of the crossing which extended the entire length of the

planks. This space was about five and three-quarters inch

deep (Tr. 14). The gravel on the highway was in size

from fine gravel up to the size of a hen’s egg (Tr. 37).

The railroad company itself maintained the crossing (Tr.

38). The witnesses all agree that the gravel of the road-

way was knocked about by automobiles and horses that

went across the highway and caused the flangeway to fill

up with rocks and dirt (Tr. 38).

Several witnesses testified that the dirt and stone that

were carried by the cars into the flangeway, filled it up toa

point about an inch or inch and a quarter from the top of

the rail. The flanges on the wheels of locomotives and

freight cars caused it to be packed solid (Tr. 17, 26, 32, 33).

Respondent testified that on Saturday previous to the

accident, he had seen loose stone standing in the flange-

way about a half inch above the ball of the rail and it was

resting on the packed rock in the flangeway. He testified

also that immediately before the accident, as he approached

the crossing, he saw loose stones standing in the flange-

way one-half inch above the top of the rail (Tr. 17).

There was not much danger of locomotives and freight

ears -being derailed because of their great weight, but

there was grave danger of light motor cars being derailed

because they were not heavy enough to erush the stones

(Tr. 42).

The railroad company appreciated the necessity of keep-

ing the flangeway clean and to that end employed men

whose duty it was to remove the loose stones and gravel

from the flangeway (Tr. 14, 26, 32, 35 and 35). But these

employees of the railroad company failed to perform their

duty and permitted the eravel and stones to accumulate

in the fangeway (Tr. 85, 59).

While the railroad company had within its power the

3

ability to produce witnesses as to the last time the flange-

way had been cleaned out, no attempt was made by the

railroad company to furnish that evidence.

The opinion of the Circuit Court of Appeals acenrately

sets forth the facts of the case. Petitioner fails toe point

out in any respect wherein the facts are incorrectly stated.

Lack of Basis for Jurisdiction.

The questions involved in this suit were purely questions

of faet which have been resolved by the jury in favor of the

plaintit?. No question of law is presented.

The decision is not in conflict with any decision of the

Cireuit Court of Appeals. It does not involve an important

question that has not been decided by the Supreme Court.

Nor is it in conflict with applicable decisions of the Supreme

Court (Rules of the Supreme Court of the United States,

Rule 38-5B.)

At the close of all of the evidence, the petitioner made a

motion for a directed verdict in its favor. The motion was

overruled. Petitioner argued in the Cirenit Court of Ap-

peals that the verdict was not supported by the evidence.

The Circuit Court of Appeals found against the petitioner

and thereby all qnestions of faet were finally settle.

The Evidence Supported the Verdict.

The railroad company was in possession of the railroad

crossing and while it was on a public street, the railroad

company maintained the erossing (Tr. 38). The highway

was surfaced with loose gravel and, for a matter of vears,

prior to the accident, dirt, sand and eravel worked into

the flangeway which beeame packed solid and firm (Tr.

26, 32, 35). The flange on the drive wheels of locomotives

packed the dirt, sand and gravel into the flangeway so that

it became hard. There was no danger of derailing a loeo-

4

motive heeause the weight was so ereat as to erush the

gravel. There was great danger however of a light motor

‘ar, Weighing three or four hundred pounds being derailed

because its weie¢ht was not sufficient to crush the rock.

The railroad company had notice of this condition for

vears prior to the accident, it employed men whose duty it

was and who did at stated intervals clean out the flange-

way.

The railroad company also had notice of the danger of

horses and automobiles kicking loose gravel into the flange-

way which would rest upon the hard packed base in the

flangeway and thereby cause a motor car to be derailed.

The jury necessarily found that the railroad company

had notice of this condition, and the trial judge who heard

the evidence was satisfied with the verdict.

Inasmuch as the jurv found the issues in favor of the

respondent, it must be assumed that it decided all contro-

verted questions in his favor. For the purposes of this

record, the testimiony in favor of the plaintiff must be con-

sidered as true and the plaintiff was entitled to such rea-

sonable inferences as may be drawn from the faets.

The railroad company knew the respondent would cross

over this particular crossing because they had furnished

him the motor ear. Notice of the dangerous condition of

the crossing was brought home to the railroad company by

the lapse of time.

In the ease of Chicago d N. W. Ry. Co. v. Struthers, 52

Fed. (2) 88, certiorari denied, 284 U.S. 662, it appears that

the flangeway over a crossing became filled with packed

stone and gravel thrown into it by the wheels of vehicles

passing on the graveled highway and that a locomotive in

passing over the crossing was derailed by coming in con-

tact with the accumulation of stones and eravel. Witnesses

testified that the flangewayv had been filled in with stones

H)

and gravel for a matter of nine days prior to the happen-

ing of the accident. The Court said:

“Tt cannot be said then that there was no substan

tial testimony tending to prove these facts: That at the

place and time of the derailment which resulted in Cur

ran’s death there was an accumulation of gravel and

small stones in the flangeways to a level with or nearly

to a level with the top of the rails, that such a condi-

tion was likely to derail a train, and that it had con-

tinued sufficiently long before the derailment that in

the exercise of ordinary care the defendant should have

discovered and removed it. In short, there was substan-

tial evidence that the defendant was negligent.

“Tt is earnestly contended by the defendant that

there was no substantial evidence that the derailment

actually was proximately caused by an accumulation

of gravel and small stones. Rather, it is urged, the

evidence shows that the derailment probably was caused

by a single very hard rock which had been thrown into

the flangeway and of whose presence therein the de-

fendant was not shown to have had any notice and

on account of which, therefore, the defendant was not

negligent. Unfortunately for this contention, while the

testimony did tend to show that a particular small

stone was a part of the accumulation in the flangeway

and that it probably was the immediate cause of the de-

railment, this stone was not something separable either

in its quality or origin from the whole accumulation of

small stones and gravel. The small stone referred to

was deseribed as about an inch in diameter. Having

regard to the dimensions of the flangeway, a stone of

such size, except as a part of an accumulation, could

not alone have affected a derailment.

“With evidence that the flangeway was filled with

gravel and small stones, with evidence that this mass

was packed down in the flangeway coming nearly to

a level with the top of the rail, with evidence that at

the point of accumulation the pilot wheels of the loco-

motive were seen or otherwise perceived by the loco-

motive engineer to jump upward, with evidence that

after the derailment a groove made by a wheel flange

ee PAN RT IS TOE

6

was seen in this accumulation and that this groove

ended where a part of the accumulation, a small stone,

split and wedged into the flangeway, was afterward ob-

served, with evidence that such a condition of accumu-

lated stones and gravel could cause derailment, there

was certainly enough to support a finding by the jury

that the accumulation was the proximate cause of the

derailment. With so much to support the finding, it

was a jury question whether the accumulation was the

proximate cause of the derailment.’’

In the case of Christian v. Boston & M. R. R., 109 Fed.

(2) 103, it appeared that a locomotive engineer was killed

when the locomotive was derailed because it hit obstructions

of stone, dust and gravel washed down onto the crossing.

It was held that the defendant’s negligence in the main-

tenance of the track at the crossing was a question of fact

for the jury.

The Verdict Does Not Rest on Conjecture.

The petitioner says that the plaintiff’s injury may have

been caused by a collisiont between his motor car and a

passing automobile. There is no proof that any such colli-

sion occurred. In fact the only testimony in the record is

to the contrary.

There were but three possible witnesses to the occur-

rence,—the plaintiff, Roy Sliter, and Miss Ponsler, a school

teacher who drove an automobile.

There was no contact between the automobile and the

motor car at any time. The plaintiff testified: ‘‘T crossed

in front of the automobile. When I was in the middle of

the highway, she was something like 30 or 40 feet back (Tr.

12).”’

Roy Slifer testified: ‘‘I didn’t see Mr. Waddell and the

automobile at the same time; I saw the automobile a little

later (Tr. 29).”’

7

Although the railroad company, through its employees,

knew of the happening of the accident and went to the

scene of the accident for the purpose of investigating the

facts (Tr. 39), it made no attempt to take the deposition of

Miss Ponsler, nor to produce her as a witness upon the

trial. It is safe to say that if she would have claimed

any collision with the motor car, the defendant would have

produced her testimony.

The only reasonable inference to be drawn trom the evi

dence is that the motor ear was derailed because of the

gravel in the flangeway. That was one aspect of the case

which the jury must have considered and decided adversely

to petitioner.

Inasmuch as the petition advances no eround for juris-

diction, we earnestly pray that the petition for writ of

certiorari be denied.

Respectfully submitted,

Royan W. Irnwiy,

Attorney for Respondent.