# Petition for a Writ of Certiorari — American Civil Liberties Union v. Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1107%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 375 U.S. 823 ## Text ” Office: Supreme Court, U.S. FILE D _JUN O8 yar ° “IN THE JOHN F. DAVIS, CLERK | Supreme Gourt : of the United States Ortober Germ. 1963 DALE ROSS: ; | rm Dy VS. ; 2 4 re GREAT NORTHERN. RAILW AY , \" COMPANY, a corporation, *. - Respondent. , ~ \ PETITION FOR WRIT OF CERTIORARI & To the United States Court of Appeals for the Ninth Circuit , LEoNnarp F, JANSEN 210 W. Main Ritzville, Washington "Grant L. Kimer & River E. Decow 925 Paulsen Building Spokane, Washington - Harvey ERICKSON 409 Spokane & Eastern Building ; —— 1, Washington Counsel for Petitioner. —— - aerate, | PRINTING CO. SPOKANE 78778 ‘ i * cee INTHE aoe Court of the United States * @rtober Term, 1963 a: DALE ROSS, . . | “. _°." Bigpiaigsier. vs. . GREAT NORTHERN RAILWAY , COMPANY, a corporation, * eee Respondent. No. {— = TITION FOR WRIT OF: CERTIORARI To the United-States Court of Appeals for the Ninth Circuit . LEONARD F. JANSEN rhs ~ 210 W. Main Ritzville, W ashington oe eos Grant L. Kimer & Riner E. Deotc ow i 925 Paulsen Building | ___ Spokane, Washington. ~~ Harvey ERICKSON “. : 409 Spokane & Eastern Building ‘ ‘Spokane 1, Washington Gounsel for Petitioner. RATIORAL PRINTING CO SPORAGE Ta778 INDEX ss OPINIONS BELOW - JURISDICTION QUESTIONS PRESENTED CONSTITUTION AL PROVISION AND STATUTE INVOLVED | : STATEMENT OF THE CASE -REASONS FOR’ GRANTING THE WRIT APPENDIX A. Proceedings in the District Court : _ B. Proceedings in the Ninth Circuit Court : | ¢. raceme of the Record TABLE OF CASES. Angel v. Billington, 330 i 183 Bailey v. Central Vermont Baltimore & C. Line vw. Redman, 295 U.S. 656 "Basham v. Pennsylvania Railroad Company, - 31. U.S. Law Week 4354, April'15, 1963 Baylis v. Travelers Ins. Co., 1¥3 ‘US. 316 Berry v. United States, 312 US: 450 ° Carley: v. Allen,e : - 1948, 31 Wash. 2d: 730, 198 P 2d 82/ Carolina Life Insurance Company et al vs. Williams, 210 F.2d 477 (CA 5) 348 U.S. 802 De Young vs. Campbell, f Co., 319 U.S. 350 ee | af 51 Wash. 2d 11, 315 Pac. 2d 629 . 25, 30, 45 te ee TABLE OF CASES (Cont'd) ‘Page E. K:. ‘Wood: Lumber Co. vs. Anderson, , rane 81 Fed. 2d 161 (CA 9). a 25 Erie. R. Co. v. Tompkins, 304 U.S. 64 dees “. Evans v. Yakima Valley Transportation ay 39 Wn. 2d 841, 239 Pac. 2nd 336 .. Frescoln vs. Puget Sound® Traction, L @P Co., ; i 90 Wash. 59, 155 Pac. 395 . 21, 25 - Gallick v. Baltimore & Ohio R. R. Company, ei ; 31 US. Law Week 482. Feb. 18, 1963-7 | 17 Gardner r v. Seymour, : : / __~ 27° Wash. 2d 802. 180 Rac. od 564. eras . 45.46 7 Gibson v. Phillips Reveleun Co., ie Y, ‘232 F. .2d 13 PCA 5) 352. US. 874 ; 17,26 Gunning v. Cooley, 281 U.S. 90. es er ae | | _—fae kman vu. Equitable Life Assur. Soc. “of United sites, a (145. F. Qd. 945 (CA_ 3, 1944). 24 y Jacobs v. New York City, 315 U. S. 2 4 aa 23. Jensen v. Shaw: Show Case Co., - a 76 Wash. 419, — Pac. 698. -° ff 17 Lewbert US. Smith’ bef ’ "54 Wash. 2nd 348. “840 Pac. ona. AT Lavender v. Kuirn, 327 U.S.'645 2 4s: a |" Lumbra v. United States, 290 US. 551 . + A7- Mattson v. Central Electric and Gas‘Co., 5 ; 174 F. 2d 215 (CA 8. 1949). 7 4 i Myers v. Reading C0, 331 U.S. 477 . 4 18 Nelson v. West Goast Dairy Co., on | 1946. 5 Wash. 2d 284. 105 Pac. 2d 76 + | 46. °° - Sentilles v. Kater- “Caribbean ee Corp., . 381 U.S..107. 26 4 - ? —_ ) QO F é Th a __TABLE OF CASES (Cont'd) Pei | a eee Page Slocum v. N.Y. Life Ins. Co., 228 U.S. 364 18 St. Germain vs. Potlatch Lumber Co., | Lae 76 Wash. 102, 135 Pac, 804 : a2, a0 Tennant vs. Peoria and P. a Ry. Co., — -. 321 U.S. 29s: 1, ER, ‘Tiller v. Atlantic C. Line, 318 U.S. 54 18 West v. American T. & T. Co., 311 US. 223 23 Wharton v.-Dept. Labor and Industries, 161 Wash. decisions 285, No. 7, ey | 15, 1963° 17 Wilcoxen vs. Seattle, :. 32 Wash. 2nd 734, 203 Pac. 2nd 658 17 ‘Wilkinson v. McCarthy, 336 U.S. 53: ee Williams vs. Carolina Life Insurance Ce., ; 210 F. 2d 477, 348 U.S. 802 m 26 Wilson v. North Pac. Ry. Co., vee . 44 Wash. 2d 122, 265 Pac. 2d os. 8, Yoder v. Nu-Enamel Corp., : 8 , 117 F. 2d 488 (CA 8, 1941) - STATUTES AND MISCELEANEOUS Rules of Decision Act, 28 U.S.C. Sec. 1652 i . Seven: Amendmemt United States Comeaytion, 4.5 Webster's International Dictionary 20. IN THE - Supreme Court oof the United States October Term, 1963 - DALE ROSS, : LS Rei oe ; : Petitioner, ‘ vs. . GREAT NORTHERN RAILWAY COMPANY, a corporation, ‘ Respondent: ») No. PETITION FOR WRIT OF CERTIORARI To the United States Court of Appeals for the Ninth Circuit 3 To the Honorable Chief Justice of the United States and the Associate Justices of the Supreme Court of the’ _ United States. a that a writ of certiorari issue to review the judgment of the United States Court of Appeals for — the Ninth Circuit. enteted in the above-entitled case on f — 13, 1963. | , Drag Pe 9. OPINIONS BELOW The district court filed no reported opinion. The opinion — of the Court of Appeals (App. B, infra,.p. 34-46) is reported ee P. 20 ..: ee JURISDICTION. _ The judgment of. the court of an. was entered on March’ 13, 1963 (App. 'B, infra, p. 47). Timely petition _ for rehearing was filed April 8, 1963, and rehearing was denied on April 12, 1963. The jurisdiction of this Court is invoked under: 28 U. S. C. Sec. 1254 (1). 2 QUESTIONS PRESENTED _1, Whether the provisions of the 7th amendment were _, violated in a diversity negligence action where tRe District -. Court granted judgment N. O. V.° (notwithstanding the - verdict). of the jury in favor of the Plaintiff-arid in granting a judgment -of dismissal,. all in favor of the Defendant . below, the Great Northern Railway Company, and the’ Court: of Appeals affirmed the judgment of the District court, there being no speculation as to the cause of serious: * . head, body, and eye injuries to Petitioner, including partial | loss of-vision in one eye, caused by a free fall from the. top of defendant’ s piggyback trailer some 18 feet to-a concrete | _ floor adjacent to defendant’ S railroad track. The fall being caused while Petitioner was unfolding a tarpaulin. to cover the top.of a load of. aluminum loaded piggy back trailer, the tarpaulin being furnished by the: defendant - railroad : oe " S & ¢ \ z . company to Petitioner. the tarpaulin containing foreign | - sharp wires extending through. eyelets .of the tarpaulin, which hung: up’ the tarpaulin and caused it to resist unfold- ing: by petitioner, the wires suddenly releasing the’, fold of» ‘the tarpaulin so as to cause the ‘petitioner to be catapulted off of the top of the load, quite clear of the load, to the concrete below, the furnishing of-such a tarpaulin with the - foreign wires hidden im the inner folds in such a saanner — as to hang up the —— of the tarpaulin, constituted: an } unsafe piece cf equipment for. the Petitioner's use jn cover- ing the load, .there being no inspection at’ any mes by . the railroad. of the tarpaulins to see that they were safe - OF fit for use, especially by personnel on top of a narrow , piggy back trailer some 18 feet from ground level, a jury returning a verdict on sp-cial interrogatories that the rail- road was negligent, and that the Petitioner was not .con- | tributorily negligent, the Districts Court having by its in- structions narrowed the issues by. informing the jury it ‘could only imposé liability on the railroad if they found - that wires in the tarpaulin caused the Petitioner's fall. The District Court on July 6, 1962, some two months after the trial, and without any hearing, granted judgment N. O. V. and judgment of dismissal in favor of the railroad, gua ant below, on the District Court's finding that petitioner's ~~ evidence did not justify the ,inference that the cause of his injuries were the wire or wires in the eyelets of the: tar- paulin, and the District Court’s own conclusion that ‘it is "a matter of ‘common ‘experience that heavy canvas when compactly folded is’ more or less stiff and subject to crink- * ling and catching in unfolding and that petitioner did not. ye oe | Me ae | ; ase eis this and. several —_ equally probable _ causes ‘af. his fall. | eae ed ss 2: W fiether the District Court Ind the Court of Appeals Ear ‘in their reviews of the evidence and the jury’s findings :for Petitioner, and their later ‘actions, have deprived petitioner of his right under the Rules of Decision Act to have his case decided in accor rdance with the law of Washington ° by ignoring the decisions of the W re: courty with .? respect, f0: i a , — (a; the weight to be afforded circumstantial ev iii. (b} the jury's right and prerogative in W ashington to determine all of the issues properly, presented to it, including deciding ultimate questions on circum- stantial evidence and inferences flowing therefrom: m respecting proximate’ cause. and negligence of a ly defendant: (c) Restrictions on the trial court ‘supplementing the record-on a motion for judgment, N. O. V.. with - his knowledge of matters noyor common knowl- edge or experience. (d) Prohibitions on the: trial court’s invasion : of the jury’s functior).to determine the facts and the reasonable infercnces to be drawn from the facts. Q CONSTITUTION AL PROVISION AND STAFUTE INVOLVED | 8 ’ The Gevcinile Amendment to the Constitution of the. United States provides:. ; a “In Suits at common-law, where the value in con- troversy shall exceed twenty dollars, the right of trial © | by jury shall be preserved, and no fact tried.by a jury shall be otherwise reexamined in any. Court of the ee is “J 5 5: * United States, than according | to the rules of the common law. The Rules of Decision Act (28 U. S.C. see. 1652) pro- 1. vides: ae ed “The laws of the several states, except where the Constitution or treaties of the United States.or Acts of . Congress otherwise require or provide, shall be: re- garded as rules of decision in civil actions in the courts of the United States, in cases where they applv.” _— ‘Ss TATEMENT The Plaintiff, Petitioner herein, breniaie 1 action eghieue. the Great Northern Railway Company, in the. United States District Court for the Eastern District, Northern Division, of Washington, to recover damages fox serious ‘personal i injuries incurred ‘in a fall of some eighteen feet to a concrete doading dock. resulting in _the loss of vision in one: eye: ' , ° F ° Jurisdiction: was based on diversity of citizenship and the. Employers Liability Act, Title 45 U.S. C. sec. 59 et seq. ’ The complaint charged: the defendant, Great Northern | Railway Company, was negligent in failing to furnish a ” safe tarpaulin to. te Plaintiff, for his duties in covering a Piggy” Back trailer load of aluminum, which®was being _ prepared for shipment on a Great Northern Railway flat car, at the Great Northern's loading vards. in Spokane, Washington. ber] This cause of action ws based upon common law negli gence’ and, upen the theory that the plaintift at the (time va 6 : m of his injury, was a loaned-servant of the defendant, Great Northern Railway Company, and could also prosecute this action for his injuries under the Employer's Liability Act. On tial te a. jury. and at the close of all the evidence.: the cause was submitted to the jury: No motion for di- rected verdict or dismissal was made (R-456). The trial judge. declined to make any comment on the evidence (R-460). The jury, by special interregatories found this defendant,.Great Northern Railway Company, guilty of common law negligence which proximately caused the Plaintiff's injuries. Further, that the Plaintiff was not con- tributorily negligent.. The jury also found that at the time of the Plaintiff's injuries he was not an employee (loaned servant) of this defendagy A verdict was returned in favor — ‘of Plaintiff for $20,000.00 against the. defendant on May | 8, 1962. Subsequently the defendant filed a post-trial motion for _judgment N. O. V. and a motion for new trial. The Dis- - trict Court, without holding any hearing, granted judgment N. O. V. on July 6, 1962. and dismissed the action. (App. _ A, infra p. 32 33). . Cn appeal by the Plaintiff, Dale Ross, the Court of Ap- peals for the Ninth Circuit affirmed the district court’s action (App. B, infra, p. 47) : The principal controversy was whether the Plaintiff had presented an adequate case of circumstantial evidence to place liability on the Defendant, there being no direct | testimony by witnesses that wires concealed within inner folds of the tarpaulin hung up the last fold of the tar- / paulin, suddenly released, and catapulted Plaintiff from \the top of the piggyback. It was ‘impossible for any person to see through the folds of the tarpaulin. Also, -the deferidant offering no explanation of the hanging up. and sudden :elease of the tarpaulin, whether the plaintiff was required sto disprove, every possible explanation that Y could be imagined as to this event, other than. the wires . being the offending ‘agencies. ~ > EVIDENCE — THE PLAINTIFF As the Circuit Court wiles out the circumstances lead- , ing up to the Plaintiff's fall were generally undisputed. . (App. B, infra, p. 39). On March 19, 1959, Kaiser Aluminum had a diiisien ; _ of aluminum sheets to be moved from its. Trentwood plant “reat Spokane to Seattle and Honolulu. The shipment was to move piggyback via Spokane International’ Railroad ‘ from’ Trentwood to Spokane, thence to Seattle via Great - . Northern ‘Railway Company. The: Spokane International Railroad had a contract .- with Ross. Transfer Company. for the handling of such trailer on flatcar movements. Under this arrangement,. . Ross Transfer would deliver a trailer leased>to the Great _ Northern to the shipper for loading of the aluminum, after which Ross Transfer Compariy would deliver the trailer to rail, site and would load the trailer aboard the rail flatcar, secure it to the flatcar, and cover the _— ~ with a tarpaulin if en by the shipper. : 8 Pursuant to this arrangement, Plaintiff, Dale, Ross, on March 19, 1959, delivered a trailer to Kaiser for loading of aluminum. After- supervising the loading of the alumi- num, he returned with the loaded trailer to the Great’ Northern Railway Company tracks near its freight house at Spokane. and loaded the trailer upon a flatcar provided by the Great Northern. In the. loading of the trailer onto the flatcar, he was assisted by employees of Ross Transfer. He was also assisted by one Ross Transfert employee, his brother, in covering the load with a tarpaulin, which was - given to him for his use by the Great Northern Railway. In the process of unfulding ‘the last folds of the tarpaulin on top of the oad of aluminum, which was then on the - flatcar, he fell and was seriously injured. Plaintiff had been one of the partners and owners of Ross Transfer Company until January. 1959 when it was sold to Riverside Warchouse. Before he picked up the load of aluminum from Kaiser, Plaintiff picked up a tarpaulin to cover the load at the —+ Great Northern W archouse, doer No. 11 (R-83). Plain- tiff was told by aG reat Northern employee to pick up a tarp at this door and. plaintiff selected one of the two tarps which were in that wafthouse. Each tarp appeared to be the same type (R-84)! ahd appeared to be no different from each other. They were folded about 4 feet across, weighed ‘about 200 pounds, were about | V2 feet high, . dark greén in color, massive, heavy, halfway dirty from . use, and in a used condition. The tarp was bulky, made of canvas-and had eyelets on it. The tarps cost $180.00 to $200.00 apiece and were waterproofed. 9 re are | =, > - After Plaintiff arrived at the loading dock and had placed the piggyback on the flatcar, he put the original tarp up @n top of the load of aluminum. The top of the = ~ dluminum load was level, che aluminum being placed on _ the load in skids. His brother Gerald Ross helped him to unfold the tarpaulin to cover the load (R-89). After they had partially unfolded the tarpaulin, with no diffi-- culty, they discovered the tarp had to be turned. They © turned ‘the tarp. so that when the tarp was. completely unfolded it would extend down over the edges of the load. Plaintiff continued to unfold the tarpaulin and had it almost completely unfolded when it resisted unfolding and . hung up. He continued to tug on it to unfold it when - suddenly and unexpectedly, the resistance inside the fold gave way. The sudden release caused Ross to lose his _ grip and to be thrown well clear of the load te the yard level. The last thing Plaintiff saw were some sharp wires _ extending through the eyelets of ‘the Jast -fold (App. C, infra, p. 49) (R-102). This fold had been-invisibte-until’ ~ the releasing of the tarp. ’ No other tarpaulins used by Ross Transfer employees ‘had ever had wires ‘through the évelets. This was later found. not to be a regular tarp to cover the loads but was’ a gondola tarp (App. C, imfra, p. 52) (R-110). These - wires. had been cut off fairly close to the, evelets leaving . sharp pieces about two to three inches long dangling from the eyelets. Then, without remov ing | these useless foreign pieces of wire they were folded into the tarpaulin and ‘stored in the warehouse by the Railroad. When the Plain- tiff subsequently selected the tarpaulin for use as aforesaid © & ae Wea” 10 i ; he was completely unaware of the existence of the sharp. wires,, for the reason that they were hidden in the inner folds. Plaintiff did not see the wires until he was in the start of his.catapuiting fall, which. fall ‘was initiated by the sudden release of the sharp Wires, after: the plaintiff had given a preliminary tug on the material not knowing what was hoiding up the material from responding to his prior, standard unfolding methods and techniques. In all the years of similar work in unfolding tarpaulins, ancd’fas a pioneer in the field of piggy-back operations,. the plain- | tiff had never experienced any difficulty whatsoever in un- folding tarpaulins (App. C., infra, p.51) (R-109). The following facts ‘were testified to in support of the Plaintiff's case. (Printed portions of the record supporting Plaintiff's case, see appendix C.) There was_no foreign ‘matter in the tarpaulin-that was not part of the tarp. ma- terial, except sharp wires through the eyelets. (App. C. infra, p. 48-49) baal 101 ) | These wires were seen - is the first time through the eyelets as the tarp released the-last fold and the Plaintiff was catapulted’ on the load, (App. C, infra, p..49), (R- 102). ; jas No similar wire had ever been-seen before in the tarps (App: C, infra, p. 49) (R-102). This wire had beer used by the Great Northern Around their freight house ‘App. C, infra, P. 49) (R- 102 103). The Plaintiff had a twenty-five year safety award at the time of his fall (App. C, infra, p. 58) ‘(R-284, 285). 1) As the Plaintiff was unfolding the tarp he ran into trouble. It hung up its folds, it refused to unfold, the "plaintiff applied more force. The resistance inside the tarp, suddenly and unexpectedly released the fold and the Plaintiff was thrown: off the load (App. C. infra p. 54) — (R-1 er He was thrown off backwards with great force (R-113)*(R-400) (R-383). Other personnel saw the wires, through the eyelets after — - the Plaintiff's fall (App. C, infra. p. 59, 60, 6162) (R-380, 381) (R-401). : ¢« fs the Plaintiff - was unfolding: the tarp. “hk fan into trouble, or. it was halding up, and he braced himself to keep the tarp Moving and unfolding and something gavé way, and Plaintiff was catapulted to the concrete loading _ dock. He did not touch the side of the car (App. C, infra, p.54). (R-113). _INSTRUCTION AND RU LINGS BY THE TRIAL COURT The trial court properly instructed the jury and nar- rowed the issues for the jury to cansider the negligence of defendant in the furnishing of the tarp used by Plaintiff. The trial court instructed: the jury at_the outset that the jury should determine: whether the defendant was negli- gent-in the particulars alleged by the Plaintiff; namely: with respect of these wires alleged to haye been left in | the tarpaulin; that this is the only specification of negli- gerice in the case; that nothing else is claimed as having a rr. been a particular of negligence; that the sole and only basis’ ~ - ; 12 upon which it is asseried that this defendant was negli- gent was the evidence. concerning: whether or not there was’ or was not wires in one or more of the eyelets_of theo tarpaulin ; that the jury must not discuss or. ceiaaites or speculate or conjecture about anvthing else than that (R-461, 462). 0. con os aon The court also instructed in ‘this general summing up - instruction ‘that “the first question, then, is, was this de- fendant negligent in that particular respect; that, now, the second question is, if this defendant was negligent in that respect, was it a- proximate cause of plaintiff's fall from. the load on the trailer in questiqg, Now, this nfeans. does the evidence show, can you find from this evidence a . that if there were wires in the tarpaulin where they were __ located, what, if anything. did they have to do as far as othe evidence discloses with this accident? (R-462). The standard circumstantial evidence and direct evi- dence instruction was also given by the trial court (R-488. 489). » Defendant Great Northern Railway Company did not except to any of these instrucuethy ( R-49+4, 495). The jury returned a verdict for plaintiff in the amount * of $20,000.00 (App. A, infra, p. 28) (R-497). The de- fendant had: not moved at the close of all of the evidence ‘of the case for a directed verdict (R- 456, 457, 459). Defendant moved for healers ietniteninlion the ver- ‘dict and for a new trial. ‘Some two months later, without any hearing on the motions. ‘on July 6, 1962 judgmeat for. _ defendant was entered dismissing the cause. - a The trial court's memorandum opinion in justifying this action in taking the case away from the jury on namely «two groungls. That it is common experience that heavy canvas- w 1 compactly folded is more or less. stiff and subject to crinkling and catching in unfolding. Plaintiff's testimony does not reasonably exclude this and several | other “equally probable catises of his fall. OPINION OF THE COURT OF APPEALS On appeal by the Plaintiff of this invasion of the right of the jury to determine the facts,'the Court of Appeals made its own independent: re-examination of these facts and affirmed the district ‘court's action (App. B, infra, p 47), and on. April 12, 1963 entered the order denying piaintiff’s petition for re-hearing (App. B, infra, p. 47) ‘The Court in its opinion sustaining the- District Court, placed great emphasis on the Plaintiff's admitted haste, his alleged admitted loss of bajance (App. B, infra, p. 43). This was based upon. re-printed testimony in the Court's opinion of the testimony of Mr. Gerkensmeyer, warehouse _ foreman, and Mr. W ellman, Manager of Ross Transfer (App.’B, infra, p. 39-40). The court lost sight of the fact *. that the Gerkensmeyer testimony in this regard was denied _ by the Plaintiff (App.-C, infra, p. 63) (R-417), and the Plaintiff had no recollection of. talking to Mr. Wellman on the occasion when these alleged statements were. made, duc — to the fact that it was right after the accident and the Plaintiff ‘was in a state of traumatic shock, (App. C, infra, p. 56-57) (R-115, 116). The belief as to whether these state- .. right to re-weigh this testimony. 14 ments were, or were not made was an issue for the jury resolved by it in fav or of the Plaintiff. The court ‘had no “ | 2 The court again misinterpreted. the testimony when it» said. “T ifficulty with appellant's factual position on appeal is that. he interprets, the mngenee: ‘A slipe—my hand slipped, something gave way into a sudden release of the wires.” (App. B. infra, p.43)™ > o This was a critical part of the Plaintiff's testimony and the court reversed the order of the events thus giving it an entirely different meaning. ees The Plaintiff testified, I braccd- myself to: keep the tarp . moving and unfolding, and something gave way, I stepped back, I slipped, my hand slipped, ‘T was over the side. I catapulted to the ground. I did not touch the-side of the Car (App. C, infra, p. 54). (R-113). When the court -reversed the order of the events they had it, “a slip—my hand slipped, something gave way, indicating that his hand slipped first and then something gaye. way: As the ‘testimony showed, and found. by the jury the something gave way first, which they found to be the wire, and then — he ‘slipped—his hand slipped due- to the sudden release of the force within the foids of she tarpaulin, The Circuit ‘Court found from a independent deter- mination of the testimony, and re-weighing of the testi- mony. in determining what the facts should be that the ‘District Court acted properly when it re-weighed the evidence and arrived. at its result which was contrary to the findings of the Jury. ‘ * : : ’ ——— 15 It found the Trial Court's ‘granting of the defendant's *Motion for Judgment N, O. V. and Judgment. of Dis- ‘missal in favor of the defendant was proper (App. B, infra; p. 46). Sol | _ REASONS FOR GRANTING THE WRIT The decision of the Court below and the District: “Court involves questions of law of general importance. In the . exercise of thé reviewing function and in setting aside the verdict of the Jury the District Court and the Court of . Appeals has so far departed from the accepted and usual, course of Judicial proceedings ‘as to require the exercise of ' . this Court’s supervisory jurisdiction. be | - THE DECISION OF THE COURT.OF APPEALS DE-. PRIVES PETITIONER OF HIS RIGHT TO JURY ~ TRIAL UNDER THE SEVENTH -AMENDMENT. The Courts below set aside the jury’s verdict solels their own, independent re-examination of thé¥evidence. In determining the issues presented by the. ‘motion for judg- mer. notwithstanding the verdict, it disregarded: entirely . that its’ review function was limited to the question of law: “W ethers there was any substantial evidence to sustain the jury's verdict?” - That fundamental Siijtaaion, based on ies requirements of the Seventh Amendment, has been hammered home by this Court. 4 ae 16 poh "4 : — However, so far as the District Court and the Circuit Court was coricerned. there is no such rule. In form, it gave no recognition to the rule; it did not marshal the evidence in support of the verdict, and it gave no consider- — ation to what inferences m: ieht reasonably be drawn there- from. Neither did it pass on the question whether the jury might on the basis thereof. reasonably have fount ~negligence-on the. ‘part: of the-defendant: Instead it stated. its own inferences as on a trial de nove, minimizing the + Plaintiff's evidence, and picked .out bits and: pieces of evi- » dence to justify their invasion of the jury’s historic. function ,to determine. the facts. The actions of both courts consti- tute another whittling away, another erosion of the full right Of a citizen to a trial by jury. This is. another out- right abuse of, ‘the courts’ functions, duties and resppnsi- bilities in supery ising a jury ‘Trial. - - This petition does not. therefore, merely toll on this. Court again to duplicate the proper function of the Gourt ’ of Appeals on review in such eases. and make a third re- evaluation of. the evidence to sustain the verdict. Since the courts below did not. even purport to. perform that function the error here is more basic and of great general mapen. : * my -Here, in complete derogation of petitioner's constitu- ’ tional right, it usurped: the Tunctions of the jury, made a_ de novo ‘determination and set at naught the standards " Taid down by this Court to protect such: -ifvasions of the P vA ¢ _ exclusive province of the jury: a0 eee aie i 6 4 » a i] a will little avail this. Gear to lay down rules for the F : f ®.” ef | : - & ee _ ‘yuidance of the Appellate and District Courts in the per- formance of their functions if such flagrant. violations of those rules go unchecked. SS nate e The standard for review established by this Court is clear. In reviewing tke trial court’s action in dismissing the action, after a cotnplete triaf by jury, the appellate / court was called upon only to decide a question of law— Whether there was any), substantial. evidence upon which . the verdict for plaintiff could be sustained. In deciding. that question, of course, it was required, as was ‘the Dis- trict Court, to assume as established all: facts in support of plaintiff's claim that the. evidence reasonably tends ‘to prove and’ give the plaintiff the benefit of all favorable inferences that mighi faifly be drawn from such facts aind inferences. Gufining v. Cobley, 281 U. S..90, 94; Lumbra . United States, 290 U. S. 551, 553; Lavender v. Kurn, 397 U. 8.°645, 653; Carolina Life Insurance Company et al vs. Williams, 210 F 2d 477, (CA 5), Cert. granted: 348 U. S. 802; Gibson v. Phillips Petroleum Co., 232 F 2d 13 (CA.5.) Certiorari granted 352 U.S 874; Gallick v. Balti- more & Ohio R. R: Company, 31 /U. S. Law Week 482,” Feb. 18, 1963. (Certiorari granted) ; Tennant vs. Péoria and P.U. Ry. Co., 321 U, S. 29, 35. The Washington rule is similar.. Jensen v. Shaw Show Case Co.; 76 Wash. 19, | "421, 136° Pac. 698; Wilcoxen vs. Seattle, 32 Wash.: 2nd . : 734,203 Pac. 2nd 658; Lambert vs. Smith, 54 Wash. 2nd , 348 -at 353, 340 Pac. 2nd 774; Wharton v.-Dept.. Labor - and Industries, 461. Wash. decisions 285, 286, No. 7.- February 15.. 1963. : | ~ Once the viene basis for a verdict 3 is apparent, the oe : . @ jury, exclusively, is 18 District Court’s and the Appellate Court's function is ex- hausted. Myers v. Reading Co., 331 U.S. 477; Basham v. Pennsylvania Railroad Company, 31 U. S. Law Week ng 4354, April 15, 1963. (Judgment of N. Y¥. Court of r Appeals reversed ). 54, 67; Wilkinson v. iller.v. Atlantic C. Line, 318 U. S. McCarthy, 336 U. S. 53,61. The facts from direct and circumstantial evidence’ aria deduc- tions from the. facts. The lower courts below, at each level, ‘acted therefore without authority to substitute themselves for the jury as they did here, to determine contested issues of ‘fact. weigh the evidence and substitute their. conclu- » _ sions for those ofthe 12 jurors, whose duty it was to find the facts and resolve the conflicts with its collectiye wisdom | and comimon sense. Slocum v..N. ¥. Life Ins. "Con 228 U. S. 364, 386-387; Baltimore @ C. Linav. Redman, 295 - U. S. 656657; Berry i. United States, 312 U. S. 450, 453. It is not. the function of a court to seareh the record for conflicting circumstantial evidence in order. ‘to take the case away from the } jury en a theory that the proof gives | equal support to inconsistent and uncertain ‘inferences. The focal point of judicial review is theoreasonableness of the particular inference or canclusion drawn by the jury. It is the jury, not the court, ‘w hich is the fact- finding boay. It weighs the contradictory. evidence and inferences: judges the credibility of witnesses, receives expert instruc- tions, and draws the ultimate conclusion as to the dacts. The very essence of its function is to sglect from among conflicting inferences and conclusions that which, it con- siders most reasonable. Je nnant vs. Peoria and P. U. Ry.’ Co.,°321 U.S. 29, 35. arged with the ascertainment of the - © + Bh The Court of Appeals and the District Court’s decision disregards the limits imposed by the standard. The Dis- trict Court and the Court of Appeals did not even make "formal obedience to the stated rules. The ‘District Court did not even make a to!'-n summary of evidence favorable to the Plaintiff. The Circuit Court gave some so-called summary favorable to the Plaintiff, but in so doing de- stroyed Plaintiff’s evidence. by finding its own conclusions as to the events in question, and by resolving its own ideas as to what could happen. and in absolutely disregarding the direct testimony of the Plaintiff that the tarp hung ‘up, suddenly. released unexpectedly, which caused the Plain- tiff's grip to slip and his resulting catapulting fall. This in the face of the naked record in support of defendant’s Contentions and required proof of other causes, which ‘triggered and caused the fall. The defendant chose not to “suggest other possibilities or probabilities as to the cause -of the sudden release of the hung up tarp, by inserting evidence in the record of ‘any other explanation of the cause of the fall.~ At ‘the end of the trial, after the jury's findings and verdict, the District Court and later the Cir- cuit Court, aided_she defendant, and made its choice of what the evidence showed. what. the infere gfices were, and what other possibilities explained ‘the fall, and the action of the canvas. The District Court and the Appellate i opinions disregarded the pertinent evidence jn suppoft of the ver- _. dict and ‘the lower courts resolved all conflicts, if any against the plaintiff. They determined’ what they would have found if they had been sitting as the ‘jury in- this 20—=«« suit. The Circuit Court in its summing up of the case after they hati determined the facts, injects, that Plaintiff must have been in.a hurry. on top of an uneven load, moving fast.to tarp the load, acting carelessly or negligently, with no proof of any fact to sustain his claim (App. B, infra’ p. 46). These courts completely disregarded the demon- stration by Plaintiff to the Jury of his tarping, and the fall, the plaintiff andi his witness’s presence and bearing, and testimony. The courts’ opinions constantly sing “hurry to get through.” Yet the special. interrogatory of the jury “found Plaintiff was not guilty ‘of contributory negligence. Many people work fast. but are not careless. Courts work fast. Major Cooper, our latest astronaut, had to work probably as fast as anyone could-in his mission, especially in his re-entry when the automatic, failure proof. re-entry méchanism failed, the ‘courts’ would have called him care- less if he had been in Plaintiff's position. Both of the courts tailor what they want the facts to. be and refuse to concede, that from the evidence: introduced, the jury’s deduction was the reasonable arid probable deduction of | what probably occurred. If any of the suggested theories of the defendant on apgeal caused the Plaintiff's fall. he would have skinned down the side of the load. and in all probability held onto the last fold of the tarpaulin and’ thus would not have been seriously injured; but plaintiff testified that he was catapulted to the ground, I did not - touch the side of the car (App. C, infra, p. 54) (R-113). Webster's International Dictionary defines, cataputt as follews: ‘Y. . . to move with a suddenness or force as if propelled by a catapult.” It may be stated at this point 4 21 that the defendant never presented any hypothesis or evi- | dence that the tarpaulin which the Plaintiff was unfolding ° would catch up and suddénly release with a s ring-li e \ : foe res \ hanging up the inner folds of the tarpaulin. When the eS, Plaintiff testified that. “something gave way” (App. By infra, p. 54) (R-113) he was not referring to any part of his body, but something at that point that was invisible to him within the folds of the tarpaulin. As the force, released the wires, the fold straightened’ out and as his . catapulting fall was initiated the last thing the Plaintiff saw was the wire (App. C, infra, p. 48-49) {R-102) which now had come into view, but too late for the plaintiff to save himself from being violently ejected from the load. Witness Griffin testified as to the fact that these wires were . present in the tarpaulin (App. C. infra, p. 59-60-61) (R-380, 381. 382). : force from any other cause. except: by the wire In the case of Frescoln vs. Pia Sound. Traction, L@P Co., 90 Wash. 59, 155 Pac. 395. “Counsel contend that the dincene may have been injured in many ways, they say: “Frescoln may have slipped upon the steps; he may have tripped over his well-loaded shopping bag; he may have become en- tangled in his long ulster; he may have been overcome | by a sudden spell of dizziness; the heel of his shoe may have come cff. It is not impossible that! he ray have lost his footing by reason of. carelessly misjudging the steps, or by reason of some "other negligent act on his part. THe court goes on to say: | Oe “Without reviewing the many decisions of this court and other cases cited by counsel in which it has been held that a verdict will not be permitted to rest upon: ' speculation and conjecture, and without receding in _any way from the rule as therein announced—a rea- sonable probability, sufficient to put one charged with negligence to proof, may be shown by circumstances.” This rule has been constittly followed by-the Speen Court of Washington. In, St. Germain vs. Potlatch Lum- ber Co. 76 Wash, 1( 12, 135 ‘Pac. 804 the Washington Su- ‘preme Court again said - “There are very fow things in human affairs, and especially .in litigation involving damages, that can -be established to such absolute certainty as to exclude the possibility, or.even some probability, that another * cause or reason may have’ been the true cause or reason for such damage, rather than the one alleged the plaintiff. But such possibility; or even proba- ilitv, is not to be allowed to-defeat the right of recovery, where the Plaintiff has presented to the jury: sufficient. facts and circumstances surrounding the « -currence as to justify. a reasonable juror in con- cluding that the thing charged was the prime and mov ing cause.” Plaintiff's case met the requirements of the State of Washington as is.set out in these,two cases. He is entitled to havé his verdict stand.- ”* lke ee The lower courts’ disregard of the’ proof favorable to Plaintiff and they consider only Defendant’s position. The summing up of-ev idence is a recapitulation of contradicted ‘evidence and imagination of defense counsel and the ‘Dis- trict Court, in favor of Defendant and not of the verdict. The Courts below failed even to take account of much of the most vital evidence for the Plaintiff. much less view a -23 it in the light most favorable to Plaintiff, the decision of the court below requires review by this court. '- This court has from the beginning recognized its duty most zealously to guard the right of trial by jury as a - basic and fundamental feature of Federal jurisprudence and that even a seeming curtailment of the right must be scrutinized with the utmost care. Baylis v. Travelers Ins. Co., 113 U.S.. 316, 321; Jacobs v. New York City, 315 U. S. 752; Bailey v. Central Vermont Ry. Co., 319 U. S. 350, 354; Wilkinson .v. McCarthy, 336 U. S:.53, 71 (Con- curring opinion). It held in the Tennant case supra, pp. 35-36, there is no reason why this court should abdicate . its “duty to protect and guard that right.” | | IT. THE LOWER COURTS. HAVE DECIDED _QUES- | TIONS OF LOCAL LAW IN CONFLICT W ITH PER- TINENT WASHINGTON DECISIONS AND WITH- OUT REFERENCE TO THEM AND HAVE SO FAR ‘DEPARTED FROM THE SETTLED COURSE OF JU- DICIAL PROCEEDINGS. AS TO REQUIRE COR. RECTION BY THIS COURT. | Insisting on full observance of the rule of Erie R. Co. v. Tompkins, 304 U. S. 64, this court in West v. American . T. & T. Co., 311 U.S. 223. said (at p. 236): “State law is to be applied in the Federal as well as the state court and it is the duty of the former in a every case -to. ascertain from all the available data what the state law is and apply it rather than to | _ . ie 4 & prescribe. a di ferent rule, however superior it may appear from the viewpoint of ‘general law’ and how- ever much the state rule may: have departed from prior decisions of the Federal courts, * * *” In Anyel v. Bullington, 330 U. S. 183, 191 this Court pointed out ‘that enforcement of state _policy - was>-the--- essence of diversity j jurisdiction. Apply ing that rule the lower courts generally have ‘recognized as available data. the. considered dicta of state courts Mattson v. Central Electric and Gas Co., 174 F. 2d 215, 221-222, (CA 8. 1949); . the rationale of the state cases Jackman v. Equitable Life Assur. Soc. of United States, 145 F. 2d 945, 947 (CA 3, 1944). Any persuasive data that is avaiiable, such as com- pelling inferences or logical implications from other re- lated adjudications ‘of other cases and any convincing ‘manifestation of local law having a clear root in judicial conscience and responsibility should be given heed ¥ der v. Nu-Enamel ws 17 F 2d 488, 489 (CA 8, 1941). Assayed by these principles, , the absence in the opinion “of the courts below of any citation of W ashington authori- ties as a basis for upholding the jury's verdiét would create. the impression that no- Washingtoy, ¢ decisions have any pertinence. However, the’ state of W ‘ashington is not a judicial vacuum on the issues presented and the proper rule to apply yerdicts based ir part on circumstantial evi- dence. The rule is not absolute certainty to justify a ver- dict based in part on circumstantial évidence and _infer- ences flowing from it. The rule does notgrequire that prior to trial a\nlaintiff must ‘crystal ball” every possible theory that might be thought of at each branch of the Pt ce re ree ont - .* 23° trial, from thé District on up the Appellate tree, and that - a plaintiff must shoot dowr each such possible theory or imagination of the District and Appellate Court, in order to hold fast to his verdict; returned after proper considera- tion, by twelve reasonable people. Especialfy when they ~ do-se-under proper. instructions of the court-and not ex- IP > Ct. en Ce ‘ cepted to by the defendant. _ pmo g —— ~The lower courts failed to properly consider similar — cases founded on circumstantial evidence (and also bitterly attacked by the defendant) which is the rule.today in the - state of Washington. Frescoln vs. Puget Sound Traction, L & P Co., 9 Wash. 59, 155 Pac. 395; St. Germain US. Potlatch Lumber Co., 76 Wash. 102; 135 Pac. 804;. De- — Young vs. Campbell; 51 Wash. 2d J1, 315 Pac. 2d €29; E. K. Wood Lumber Co. vs. Anderson, 81 Fed. 2d 161 (CA 9). In failing to take into account the Washington decisions on closely related issues the decision of the courts below ignores the Rules of Decision Act-and the principles estab- lished by this Court to safeguard its observance. As the - language used by both of the lower courts show, in taking away the verdict these two courts, separateh emphasiz¢ their failure to recognize that the lower court’s function. was only to determine what it was reasonable for the jury to. presume in favor of the plaintiff. \Eraphasis supplied. j The lower courts’ invasion and abrogation of the jury's right to determine the ultimate issues of this case constitute as serious an erosion of the right to trial by jury as has been observed during the past vears in Employer's Liability - on. 26 Cases. In case after case, the jury .was absolutely elimi- nated as having no useful purpose to perform, as District, Appellate and State courts had detérmined, sitting as the * powerful thirteenth juror. what was. to them, reasonable. IIT. THE GENERAL I[MPORTANCE OF THE QUES- TIONS. HERE INVOLVED MAKES IMPERATIVE THE EXERCISE. OF THE. CERTIORARI JURISDIC- In the exercise of | its discretionary jurisdiction, this court has long emphasied the continuing importance of its . vigilance to preserve in the jury the exclusive power to weigh the evidence. and détermine contested issues of fact. Gibson v. Phillips Petroleum Co. 232.F. 2d 13, Cert. granted. 352 U..S. 874; Willzams vs. Carolina Life Insur- ance Co., 210 F. 2.477. Cert. granted, 348 U. S. 802; Basham v. Pennsylvania Railroad Co., 31 United States — ‘Law Week 4354, April 15, 1963; Sentilles v. Inter-Canib- bean Shipping Corp. 381 U.S. 107, 110; Lavender’ v. Kurn, 327 U. S. 645-654. . In the administration of justice. the benefits of the jury's composite knowledge of everydai affairs are indispensable. ~ Here, however, it is submitted that the lower courts’ failure even to note. much less observe the constitutional limitation _on the lower courts’ review functions, requires the exercise of this Court's supervisory power. — | Additional reason for certiorari here is presented by basic principles of orderly judicial, procedure. ‘The -steadvy, 27 ~ day to day whittling, away of the jury function should be halted, before this right is completely extinguished. “CONCLUSION For the foregoing. reasons, this petition for a. writ of certiorari should be granted. : pa is submitted, Leonarr F. Jansen. 210 W.. Main Ritzville, Washington Grant L. Kimer & Riner E. DeGLow 925. Paulsen Bldg. ” Spokane, Washington Harvey EricKson 409 Spokane & Eastern Bide. Spokane 1, Washington Counsel for Petitiongy. in ° - ; APPENDIX A UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON NORTHERN DIVISION FILED IN THE U: S. DISTRICT- COURT Fastern District of Washingten MAY “21, 1962 ‘ DOROTHY E. MOULTON, Clerk Deputy. . DALE Ross, . ; Plaintiff, - Vs. ; ; Civil THE GREAT NorTHERN:- Ramway Co, | Noy 1920 EA aon EN - Defendants. sce AMENDED JUDGMENT ON JURY VERDICT This action came on for trial before: the Court and a _ Jury, Honorable George H. Boldt presiding, with all parties. _ appearing, by counsel dad the i issues having been duly tried. ~and the ny, on the 7th day: of May, 1962, having ren- _ dered a verdict for the plaintiff to recover of the defendant Great’ Northern Railway damages in. the amount of $20,000.00, - IT IS ORDERED AND ) ARJUDGED that the plaintiff recover of the defendant Great Northern Railway the sum of $20.000.00° and his costs of action, that’ the action be dismissed as to, defendant Spokane International Railroad, * and that the defendant Spokane International Railroad recover of the plaintiff its costs of action. f° DATED this 21% dav of Mav, 1962. ° DOROTHY FE. MOULTON, Clerk By: s Sandy Sandule, Deputy | sn , . 29 £ UNITED STATES DISTRICT Court. EASTERN DISTRICT OF WASHINGTON NORTHERN DIVISION’ Dart Ross are is Plaintiff, ‘aoe vs. : | Great NortHERN RatLway Company, Civil a corporation, af@ SPOKANE ~ | No. 1920 INTERNATIONAL RAILROAD CoMPANY ) a’ corporation, Defendants MEMORANDUM DECISION . Counsel ; agree the jury finding that plaintiff was not a ~ railroad employee at the time of his injury leayes plain- tiff’s claim based solely on. Ww ashington common law principles. ; The ultimate question presented on the’ motion of de- fendant Great ‘Northern Railway tur judgment r-o.v. is whether there is evidence in the record reasonably war- — ranting inferences establishing negligence of the moving defendant and proximate causal relationship thereof to | plaintiff's injury. As to both propositions plaantiff-has the burden of proof. Substantial evidence .is required and a “scintilla” is not sufficient under Washington law. Carley v. Allen, (1948) 31 Wn. 2d 730; Wilson v. Northern Pa- cific Ratlway Co. (1954) 44-Wn. 2d 122; Evans v. Yakima Valley Transportation Co. (1952) 39 Wn. 2d 841. The only direct evidence in. the record purporting to. _ establish the proximate cause of the accident is the follow- ing entire testimony of plaintiff on that subject: “A. We were in the process. I stepped Across the load to the south side at that time. Q. And then what happened at that ‘time? | ) | a er - 30 A. T-reached: down, we were pulling and stretching or moving the tarp out, and I was over the side.” Tr. page 49 lines°21- 29. . “OQ, Going back to my question, would you describe from your recollection how that tarp felt up to the time vou fell off this. load? A. Well, we were havi ing a little ‘antaln moving’ it, . not too much, and as I was ‘unfolding it and turning it, it seemed to ‘give way and I went over the side.” Tr. p. 30 lings 12-17. < THE COURT: Let me put it this*way, just tell us again, Mr. Ross, what vou did at the time and what happened to vou. A. . Well, as I was moving the tarp and unfolding it. I ran mto trouble. or it was holding up, and I braced myself to-keep the tarp moving and unfolding, and something gave way. And I stepped back. I slipped. my hand Sslinned. T was ober the side. T catapulted "to the ground. ' did not touch the side of ‘the ¢ay. , Tr. p./54 lines 4-12. .¢ Soe This testimony does not meet the requirements stated by the Washington State Supréme Court in Wilson v. . Northern Pacific Railway Co., 44 Wn. 2d 1922 (1954): ‘or rise to the quality and substance of the evidence before the same court in DeYoung v: Campbell, 51 Wn. 2d 11 ‘1957). the cited decision most fav orable’ to plaintiff. Mr: Ross's testimony ‘docs not show’ directly or justify the ‘infer: ence that in his handling ef the: tarpaulin “the something” that “gave w av” Was a-wire or wires in the evelets of the tarpaulin or some condition in the tarpaulin caused thereby. It is a matter of common experience that heavy canvas when compactly folded’ is more or less stiff and subject to crinkling and catching in unfolding. Plain- tiff’s testimony does not reasonably exclude this and several other equally probable causes of his fall. ~The difference between speculation and a reasonable in- \ ference constituting substantial evidence often cannot be a Soe a specified with precision apart from «a finding of ‘one ‘or | y ' thé other in a, particular faci pattern. The firm conclu- ae _sion that the general verdict for plaintiff must*have been ‘ | based only on-speculation and conjecture rather than on * - \ yséasonable inferences inescapably follows from analysis vt the controlling Washington decisions and close considera- tian of the evidence. Accordingly, the motion. of ‘abinihens Great Northern Ry. for judgment dismissing: the action notwithstanding ~ the: ‘general verdict must be -aind heréby*is granted. | Plain- tiffs exception noted. Appropriate form of judgment may be presented for signature at the convenience of counsel. Dated this i8th day cf June, 1962. GEO. H. BOLDT. aaa Ba Laited States District Judge C. as : % % ' i ve = / 32 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WASHINGTON NORTHERN: DIYgSION Dace Ross, & Plaintiff, | vs. . GREAT NorTHERN RatLway ComMPAny, a corporation, and SPOKANE INTERNATIONAL RaILRdAD COMPANY a corporation, Defendants. | Great NortHern RAiLw AY CoMPany, a. corporation, S Third Party Plaintiff, | Civil gage ee “| No. 1920 SPOKANE INTERNATIONAL RAILROAD : : CoMPANY, a corporation, | i Third Party Defendant. ¥ - e 4 SPOKANE INTERNATIONAL RAILROAD ‘COMPANY, a corporation, . . Third Party Plaintift, - - Ross TRANSFER ious corporation, - : . | Third Party Defendant. ° "JUDGMENT OF DISMISSAL This cause having come on for trial on "May 2, 1962. ‘before the undersigned Judge of the above entitled Court: witnesses having been sworn and evidence presented on behaif of plaintiff and defendants; the jury having rendered ® its verdict in favor of plaintiff and’ against defendant, Great Northern Railway Company, and judgment ‘having > Ano - oo been entered on that verdict; and defendant, Great Nowh- ern Railway Company. having moved to see aside the verdict and judgment on the verdict and enter judgment of dismissal in favor.of Great Northern Railway Company. or in the alternative\ for a new jury trial; both parties having submitted briefs in accordance with their respec- t’ > positions, and the Goust’ having reviewed and exam- ined the briefs and evidence and files herein, and being duly advised in the premises; and the Court having hereto- _ fore render@ and entered its memorandum decision dated June 18, 1962 which grants the motion of defendant, Great Northern Railway Company. for judgment dismissing the action notwithstanding the general verdict. ‘and. directs entry of judgment of dismissal in favor of the defendant. Great Northern ‘Railway Company: NOW. THERE- FORE. ae : os IT IS HEREBY ORDERED, ADJUDGED AND DE- CREED. that the plaintiff take nothing by his action, and that the verdict of the jury and the judgment thereon against defendant. Great Northern Railway Company. neretofore entered, be vacated and that the above entitled case and the same is hereby dismissed with prejudice and with costs to the defendant, Great Northern Railwas Com- pany, to be taxed according to law. DATED this 6th dav of July. 1962.’ GEO. H. BOLDT. -United States District Judge. - Presented by: THOMAS J. WETZEL Of Attorneys for Defendant. _ Great Northern Railway Company 34 APPENDIX B - UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT | ‘Dae Ross, Appellant, | No. 18,278 Vs. | es _ March 13, Great NorTHERN RalLway ComPAny, . a corporation, ; 196: Appellee. Appeal from the United States District Court for the Eastern District of Washington, Northern Division ; ‘XY Before: CHAMBERS, ORR an BARNES. Circuit Judes S| BARNES, Circuit Judge: Appellant sued appellee in two causes of action for serious personal injuries. The first cause of action was based on the Federal Employer’s Liability Act (45 U.S.C. §§ 5 and 51, et seq.), herein sometimes referred to as “F.E.L.A.” The second cause of action was a common law action ‘for negligence. Both were submitted to a jury, which: found, in answers to special interrogatories: That. ‘ Great Northern Railway was negligent; that such negli- gence was a proximate cause of appellant’s fall and_ in- juries; that Spokane International Railroad was not negli- gent; that appellant himself was not negligent; that the appellant was not an emplovee of either defendant; that appellant sustained: damages in the sum of $20,000. The F.E.L.A. thus being out of the case, the trial judge _(as he had. strongly indicated he would do when he sub- mitted the issue of employment to the jury)’ granted a- “If this was unquestionably a common law negligence case, I would not have the slightest hesitancy in dismissing the case for want of proof of either negligence or proximate cause.” (Tr. 423) g ; ; 35 judgment notwithstanding the verdict: to the defendant _ Great Northern Railway Company. e c - . * The sole question on appeal is whether ‘the. jury verdict was properly set aside and whether the judgment notwith- standing ‘the verdict was properly entered. This was a diversity-case (28 U.S.C. § 1332). if not an FELLA. case ( U. 8. C, § 1351). Jurisdiction exists here under 28 U.S.C. .§ 1291. - The circumstances leading up to the accident itself were generally undisputed. Thev were these: On March 19..1959, Kaiser Aluminum, had a shipment . of aluminum sheets to be moved from its Trentwood plant - “near Spokane to Seattle and Honolulu. Spokane Interna- ‘tional Railroad. as the only railway company serving Kai- ser’s Trentwoot plant. was the originating carrier. The shipment was to move pigevback via Spokane Interna- tional Railroad from Trentwood to Srokane. thence Great Northern Railway Company to Seattle. The Spokane International Railroad had a contract with - Ress Transfer Company for the handling of such trailer on_. flatcar movements. Urider this arrangement, Ross Transfer would deliver a trailer to the. shipper for loading of the aluminum. after which Ross Transfer Company would de- liver the trailer to rail site and would laad the trailer aboard the rail flatcar. secure it to the flatear. and cover the load ~ with a-tarpaulin if required by the shipper. Pursuant to this arrangement. plaintiff. Dale Ross. on March 19, 1959. delivered a trailer to Kaiser for loading of aluminum. After supervising the loading of the aluminum. he returned with the loaded trailer to the Great Northern Railway Company tracks near its freight house at Spokane and proceeded to load the trailer upon a flatcar .provided by the Great Northern In the loading of the trailer onte the flatcar. he was assisted by: emplovees of Ross Transfer. He was also assisted by them in securing the trailer to the fatcar and covering the load with a tarpaulin which he had procured. from the Great Northern freight house. In the process of turning: or unfolding the tarpaulin’on top of the r 36 load. of aluminum on the trailer, which was then on the . flatcar, he fell and was injured. ’ Plaintiff had been one of the partners and owners-of Ross Transfer Company until January 1959, when the partner- ship, which had been incorporated, was sold to Riverside Warehouse. Before he picked up the load of aluminum from Kaiser, plaintiff picked up a tarp to cover the’ load at the Great Northern warehouse in Spokane. Plaintiff was told by a Great Northern employee where the tarps _ were located and plaintiff selected his own tarp from the warehouse. We have assumed for the purpose of this ., opinion that it was a tarp owned by the Great Northern Railway Company, although the tarps in the warehouse’ from which plaintiff selected the one involved here were owned. by various trucking companies, as well as Great. Northern Railway Company. When these tarps were re-. turned to Spokane by railroad, they were consigned to Great Northern Agent McFarland and placed at pai 11 of the Great Northern freight house, regardless of owner- .ship.. According to, plaintiff, the tarpaulin-which he selected was no different than the others at the freight house. It weighed close to 200 pounds and folded was about 4 feet across, about 1'/2 feet bizh, dark green in color, massive, heavy, halfway dirty, and-in a used condition. The tarp was bulky, made of canva$ and had eyelets on it, much the same as Exhibits Nos..31 and 32. They (the tarps) were also expensive, costing between $180.00 and $200.00 apiece _ and, of course, were waterproof, inasmuch as their purpose was to protect the shipment from-damage by rain and the elements. When plaintiff Ross arrived at the Great Northern piggy- back loading ramp with the load of aluminum, he then backed the trailer load of: aluminum onto the railroad flatcar and put the original tarp he had selected earlier in the day’ up on top of the load of aluminum. Plaintiff’s brother, Gerald Ross, was helping him with the tarpaulin on top of the load of aluminum. Plaintiff Ross was an ex- - pert in the piggyback business and did not need anyone to tell him how to do the details of his job. After. plaintiff 37 Ross and his brother Gerald had started to unroll the tarp - on top of the load of aluminum, plaintiff had to get down for a moment to get the bill of lading out of the cab of the truck. While plaintiff was away trom the: tarp for a mo- ment, his brother found that the tarp was placed on the _load the wrong way and would have to be turned. When plaintiff got back on the load, his brother te « him of the problem: and ihev started to turn the tarp. According to Gerald Ross. his brother grabbed hold of the tarp to help - turn it and pulled on the tarp and fell backwards. Getting to the details of appellant's fall, it was appellant's © theory of negligence that there were wires passing through ‘ the “eyelets of the tarp. left on when wires had been used previously to secure the ‘arp to flat cars, later to be cut (as were the ropes sometimes alternately used) when the tarp was removed as a cover for the aluminum shipped.? These wires. with their sharp points: could easily, say appellant's counsel, have caught in the tarp and when force was used by appellant to unfold the tarp, could have “unexpectedly” given way, “plinging”* or “catapulting’”* the appellant to the ‘concrete flourway of the loading dock. There exists a considerable difference of opinion between counsel, both as shown by their briefs.and expressed at the time of oral argument, as‘to just how-the accident occurred: what force appellant exercised and against what object: where he was standing; whether the tarp was foldcd “wrong”, or was placed “rong” on the load, etc. For that reason we. have carefully searched the record. and rely only on what was testified to by the various wit- nessés : : v (1) Appellant testified the tarp “was not folded cor- rectly” (Tr. 97. 1. 3): “it was folded wrong” (Tr. 97. 1. 6) ; the tarp was placed “crosswise of the car” (Tr. 98. 1. 13): and not completely unfolded (Tr. 98. II 18-19). : 2Appellant noticed two wires. in two evelets, four to six inches in length. . ; Pt, 2The word used in the plaintiff's confentions in the pretrial order *The word used in efal argument. and bv appellant Tr. 113). . s . 38. “If it was folded right, you could set it on top of the load, in’ the center of the load, and roll it from both — ends out . . . and it will automatically fall down over . the load” (Tr. 99, Il. gg a is “not [then] com- pletely unfolded” (Tr. 100, 1. . “[A}fter you get it elongated out lengthwise,” ee “put it on over the sides of the load” (Tr. 100, 1. 25, 101, 1. 1). After the tarp was found “in the wrong direction, folded wrong . . : we had to put it longways . . . we left it. partially unfolded and proceeded to turn it partially unfolded (Tr. 101) . . . We had to tum it so it would fold longways over the load. (Tr. 101) After we had, turned it a. ways, we started to unfold “_it some more” (Tr. 102) and saw wire “two pieces, . . ' four to six inches long,” through the eyelets (Tr. 103). “We were, in the process [of turning the tarp). I stepped across the load to the south side at that time.” “Q. And then what happened at that time? “A. I reached down. we were pulling and stretching . or moving the tarp out, and I was over the side. . . (Tr. 108) * * * I was off about the center [of the - load’... . [We were having a little trouble moving it, not too much, and as I was unfolding it and turning it, it seemed to give way and I went over the side. a 109° ** “O. Tell us how you happened to lose your grip on the tarp and fall off the load. “The Court: Let me put it this way, just tell us again, - ’ Mr. Ross, what you did at the time and what ee to you. “A. Well, as I was moving the tarp aiid unfolding it, I ran into trouble, or it was holding up, and I braced myself to keep the tarp moving and unfolding and _ something gave way. And I stepped back, I slipped, my hand slipped. I was over the side.- I catapulted to the ground. I did not touch the side of the car.” (Tr. me 4 He had been standing sideways. not endwise to the 39 load, facing north. with his back in the direction he fell. (Tr. 207-8. ) . = (2) On cross-examination, Dale Ross,-wh0 was an ¢x- pert on the piggyback business of putting truck trailers on railway cars (Tr. 178-9; 196), testified he could have put the tarp.on at the Kaiser plant when-he picked up: the load of aluminum or at the loading dock of the Great Northern spur before the trailer went on the flatear, but “my time was behind” (p. 162). and this was not done, in order “to speed up the operation.” . “GQ... {Pt was because vou were in a hurrv? “\ Yes. (Tr. 163 — “QO. ... [Pt would have been safer to have taken the . tarp down onto the ground and unfolded it and re- folded it if it needed refolding? [Tr. 164° “A. ... if we had time ’ Ross had. a six o'clock deadline’ to meet. (Tr. 200.) His watch. broken in the accident. stopped at thirteen minutes to six. {Tr. 199.) (2?) Mr. Gerkensmever. warehouse foreman for the Great Northern Railway Company. testified he had visited Mr. Ross at his house a week of more after the. accident. “Q. Did vou inquire about the accident? “A. Yeah--well. T asked Mr. Ross what happened. and he told me. , ; ~“Q. What did he tell vou. “A He said, ‘Just one of those things, Dick.” he said. ‘Just lost my balance.’ “O. Did he make anv mention of anvthing wrong . with the tarp? “AM: No.” (Tr. 228-9. (4) On the evening of the accident. Emery Wellman: . Manager of Ross Transfer Company and plaintiff's super- visor, went to the hospital and talked to Mr. Ross. Testi- mony regarding ‘this conversation between “Mr. Wellman . « : 40 and plaintiff Ross at the hospital was as follows (Tr. z 320-1) : “Q. All right. Now, viii to the accident itself, you have just stated that you saw Mr. Ross on the night of the accident, is that true? . “A. Yes. 7 “QO. And as a matter of fact, did you talk to him? “A. Yes, I did. “Q. And during that discussion didn’t : state that he was careless? _“& As I recall the conversation, he made the com- ‘ment that he was in a hurry, and oe he guessed he was a little careless. . “QO. And that is ai language he himself used? “A. I believe so.’ (5) Mr. Thomas Griffin, an employee of Ross Trans- . fer Company, assisting plaintiff Ross and Gerald Ross in the loading at the time of the accident, testified as follows (Tr. 385-6) : ei 3 As. a matter of fact, at the time or shortly there- after, it was your impression that he slipped or tripped __on the skids of aluminum. isn’t that correct?. “Mr. Kimer: I object. That wasn’t covered in the | _ direct examination. I. don’t ‘recall him testifying ¢ to anythine about that. “The Court:’ Well, I think you inquired. shout the | nature of his fall and this would be in that general area. If he has any knowledge on this. I think he, should be interrogated about it. Put him a question, ‘please. “Mr. Wetzel: Will you read the question? “(Whereupon, the previous ae was read as fol- | lows: ‘QO. “As a matter of fact, at the time or shortly there} after, it was your impression that he slipped or trippefi on the skids of aluminum. isn’t that correct?’ ) 4 : “A, That would be the natural impression 1 would have, yes. ir : “QO. (Mr. Wetzel) Is that the impression you had-at . that time? | : “A That is right, at that’ time.” The same Mr. Griffin testified as follows at Tr. 386-7: “Q.- (By Mr. Hamblen) Mr. Griffin, you said this was an adequate tarp. I think that is the word you used, right? “A. Yes. : “QO. Speak up. “A. Yes, that is right.” ‘ (6) Plaintiff's brother, Gerald Ross, who was within a few feet of plaintiff when the accident happened, describes the accident as follows (Tr. 399-400) : “4 Well, Dale ‘got down off the load and I was’ working with the tarp and I unfolded it out. “QO. ‘How far more did vou unfold it? - “& | don't know, I folded it out far enough to see what we had—it was the wrong way that we had it. We would have to turn it. “Q. Then did he get back up on there? “A "Yes. he cot back up on top of the load. “Q. What did he do? x “4 He crossed over the load and he got-——he was facing north, standing: and he grabbed ahold of the tarp and I told him when he got up on. the load that we would have to turr it. : “QO. What happened? at “A He either saw or I told him. ~ “GQ. Then what happened? “A. He grabbed ahold of the tarp and he pulled on ~ the tarp. and he fell backwards. > . A OC 49 3 “Q. What happened in relation to whether or not his body—what happened to him, as he went back- wards, you say, what happened to his body? - “A. He went—seemed:to go straight. back when I saw him going. I knew. he was going to be. hurt pretty bad, he was off balance. he was going backwards.” In further testimony about the actual accident, plaintiff's brother Gerald testified as follows (Tr. 405) : “Q.. Now, with regard to the accident, isn’t it your statement that Dale slipped or tripped and then lost his hold on the tarp, and then fell over the south side of the load? “A. Yau. *Q. Was the flatcar standing still at the time? “AL Yes, “Q. There were no switch engines or switch crew in the vicinity? “A. Not right at that moment, no. “Q. Now, it was also your_statement that Dale could have:tripped.on the edge of thecrates or slipped on one » of the steel bands, is that not tyue? “A. Yes. bra es Q. ‘Now, you had an unevt footing on top of the load, did you not? “A Yes, that is right.” The j jury found the plaintiff Ross was not an employee of. either railroad”. The Federal Employer's. Liability: Act is . therefore not in-the case. The trial judge, out of an abund- ance of caution; permitted the jury to determine if there was any inference of emplovment by either’ railroad, so as to bring the Federal Employer's Liability Act into play. (Tr. 423.) When that aspect of the case was eliminated by the . special findings of the jury, the case became one purely of common law negligence. The federal statutes, and cases decided in interpreting them, have no place, then or now, | in our consideration of the issues now remaining in the case. . ae 43 Counsel for ‘appellant urges that the railroad failed to present any evidence to explain the -fall—that the railroad “failed'to bring forward any theory to explain the hanging up and instantaneous release of the tarpaulin.” ( Brief, p. 38); that “the presence of the only items that could cause the tarp to hang up and then suddenly release, were found by the jury to be the wires through the eyelets of the tarp.” (Brief. p. 45): The jury's interrogatories did riét explicitly cover or refer to the wires, nor what caused the fall. nor were any such interrogatories requested or proposed. The difficulty with appellant's factual position on appeal is that he. interprets the language: “a slip*-my hand slipped.—something gave way” into a “sudden release of the wires—the only items that could cause the tarp to. suddenly release.” The story told by appellant, best suited to his counsel's theory of the case does’ not support the language used on’ his beh... in his briefs. It assumes the slip of appellant’s hand. the bracing pull appellant made-.; his moving from the center of the load to the south side. facing north, and his uneven footing all could ‘not have caused or proximately contributed to the occurrence of the accident. This without reference to appellant's deadline. his admitted haste. his alleged admitted loss of balance. ‘As the trial court carefully pointed out: ( (Mr. Ross's testimony does net show directly or jus- _ tify the inference that in his handling of the tarpaulin ‘the something’ that ‘gave way Was a wire or wires in ~the eyelets of the tarpaulin or some condition in the tarpaulin caused thereby. It is a matter of common experience that heavy canvas when compactly folded is more or less stiff and subject to crinkling and catch- _ ing in folding. Plaintiffs testimony does not reasonabls exclude this and several other equally probable causes of his fall.” Counsel for appellant urgently sugges? that the second, sentence quoted‘ above constitutes -the taking by the trial judge of judicial knowledge of a fact. that ts not true. and obviously not in evidence: that all heavy canvas may be 7 rs > 44 stiff and subject to catching in unfolding. Without passing on this issue, we do not find it interferes with the validity _ of the coury’s conclusion in his third sentence, that. appel- ubstantial iniience of seule S negligence and the proximate causal relationship between it and appellant’s injuries are required under. Washington law. Substantial evidence is required, and a “scintilla” of evidence is unsuffi- cient under that law. Wilson v. North Pac. Ry. Co., 1954, 44 Wash. 2d 122, 265 P. 2d 815; Evans v. Yakima Valley Transp. Co., 1952, 39 Wash. 2d 841, 239 P. 2d.336; Carley vu. Allen, 1948, 31 Wash. 2d 730, 198 P. 2d 827. In Wilson v. North. Pac. Ry. Co., supra, involving a: crossing accident and common law negligence, the Wash- ington Supreme Court said: “We have held that negligence may be proven by: cir- cumstantial evidence. We have also held that proof of negligence does not have to be. beyond a reasonable doubt. But this court has never held . . . that the proof of the proximate cause ‘could be left to conjecture or speculation.” -The trial court’s refusal to grant a motion notwithstanding ‘the jury’s verdict was reversed. In Carley v. Allen, supra, the Washington Supreme Court said: — “Negligence will not be presumed. . . . The party alleging negligence must prove that negli- gence existed .. . . and, further,- that ‘the negligence was the proximate cause of the injury.” ‘(Citing Wash- ington cases in support of each proposition.) .(P. 831.) And further. that: “Another rule of the same tenor is: ‘* * * if there is nothing more tangible to proceed upon than two or more conjectural theories under one. - 45 ¢ or more of which a defendant would be liable anc under one or, more of which a plaintiff would not be entitled. to recover, a jury will not be ‘permitted to - conjecture how the aceident occurred.” Gardner v. Si \- mour, 27 Wash. 2d 802, 180 P. 2d 564, 569. Another statement of the law is: as ‘In showing that the negligence charged was the proximate cause of the injury, it is not enough for the plaintiff to prove that the negligence might perhaps have caused the injury. If, for example, the -injury _ complained of. might well have resulted from any one of many causes, it is incumbent upon the plaintif to . produce evidence which will exclude the operation of those causes for which defendant is under no legal obligation. If the cause of. the injury to the plaintiff ‘ may be as reasonably attributed to an act for which - the defendant is not liable as to one forawhich he is -liable, the plaintiff has not sustained the burden o! fastening tortious conduct upon the defendant. The fact that a defendant joins issue unon a complaint can- _ taining a generavaverment of negligence. without mov- ‘ ing to make the pleadings more, definite. does not re- lieve the plaintiff from proving a particular act of negligence upon which to base his right to recover. 38 Am. Jur. 975, Negligence, § 285° Id. as 851-2 De Young v. Campbell, 1957..51 Wash? %d 1111. 315 P. 2d 629. upon which appellant heavily relies. merely em- phasizes the previously well recognized rule that ‘inferences based upon circumstantial evidence may be sufficient, to establish proximate cause: There “the evidence favorable to plaintiff. if believed by the jury reasonaDk cxcluded th: possibility that the accident was the result of amy cause other * than [her tires’ contact with the street car rail.” ‘Emphasis added.) ‘It was. as the ourt emphasized. “the only comcli- sion that could fairly and reasonably be drawn.” No such factual situation exists in this case. Many con- clusions could fairly and reasonably be drawn, from the evi- dence. including the conclusion that the. wires attached to the tarp's evelets had no proximate, relatienship whatsoever - > 46 to the accident and appellant’ s injuries. As the trial.court stated herein below: rs | “The testimony does not . . . rise to the quality and substance of the evidence before the . . . court in De Young v. Campbell [supra| the cited decision most favorable to plaintiff.” :. And see Gardner v. Sey-nour, 1947, 27 Wash. 2d 802, 150 .P, 2d 564, particularly pp. 569 and 570. Any award, by. jury or court, would herein on the evi- dence before us, rest on speculation or conjecture. As the — Washington Supreme Court said in Nelson v. West Coast Dairy Co., 1940. 5 Wash. 2d 284. 105 P. 24 76:. “There must be more that a mere possibility that'an accident or i; jury may have occurred in a varticular way.” There must exist a reasonable probability the plaintiff's injuries were the proximate result of the defendant's negligence. Here the appellant. an‘admitted expert on the proper way to place tarpaulins on loaded trailers placed piggy back on freight cars (flats ‘or gondolas) , working without instruc- tions as to how or in what manner he was to place the tarp: facing-a deadline and in a hurry co finish his work; moving as-he was over an uneven surface to such place and position on top of the load’ as he desired; without proof of any defec- tive condition in the freight car, trailer, binding chains, tar- _ paulin, wires. ropes or any other equipment; ygth no proof anvthing gave way, or caught. or was suddenly feleased, has only prov ed that ‘something’ gave wavy. including the apspel- lant’s grip on the tarpaulin. : This. of course, is not to Say that appellants cannot win cases based on inferences arising from circumstantial .evi- ‘dence alone. They may. but-as we have .pointed out, the evidence must then “reasonably exclude” any other proxi- maie cause. ‘This the evidence here presented to the jury. failed to do. The order of the district court. dismissing the action not- withstanding the general verdict of the j pry: for the appel- lant, is Affirmed. Endorsed | oe Filed March 13. 1963. Frank H. Schmid. Clerk. Bh : / UNITED STATES COURT OF APPEALS _ POR THE NINTH CIRCUIT | Date Ross, : Appellant, icsete . No. 18.278 | GREAT NorTHERN Rattway Company, a Appelle llee. APPE AL from the Unite i States District Court a the Eastern District of Ww ashineton. Northern Division. THIS CAUSE came on ‘to be’ heard on the Transc ript of the Record from the United States District Court for the: Eastern District of Washington. Northern Division and Was duly submitted, . ON CONSIDERATION WHERE ‘OF. It is now here * ordered and adjudged by this Court. that the judgment of the said District Court in this Cause be, and hereby/1s . affirmed. Filed and entered Match 13, 1963. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT . Excerpt from Proceedings of Friday. April 12. 1963 Before: CHAMBERS. ORR & BARNES. Circuit Judges “ORDER DENYING PETITION FOR REHEARING On consideration the -reof. and by direction of the Court. IT IS.ORDERED that the ‘petition of appellant filed April 8. 1963 and within time allowed therefor by rule of court. for a rehearing of above cause be. and hereby is denied. o> D> 48 APPENDIX. C } (Record page |0!) ‘(PORTIONS OF THE RECORD) You have to put it on over the sides of the load. And after you get it over.the sides, is it sccured to the sides of the— (Interposing) It is secured to the sides of the trailer. I see. Now, you started to’ unfold it, as I take it’ THE COURT: When you:are finished with the demonstration, I- think vou had better come back _to the stand. MR. DEGLOW. Go back to the stand, please. (‘By Mr. Deglow: Mr. Ross, recollecting your testi- mony, did vou move the tarp, after vou found that it was in the wrong direction, folded wrong? We had to put it longways of the trailer. ves. T see. Now, did that involve unfolding the tarp and refolding :t or anything‘of that nature? No, we left it partially unfolded and proceeded to turn ‘ -it partially unfolded. And did you turn that sc t. t vou could unfold it like you just demonstrated -to us here?— We had to turn it'so it would fold longways over the load. ves. Incidentally. did’ you see any foreign matter in the — tarp that was not part of the tarp material? Not at first. no. : . When did vou first see anv foreign matter. if vou did?’ ’ (Record page 102) Well, when we started to turn it,’ after we had turned it a wavs, we started to unfold it some more. And what did vou see’. 49 The last thing | remember is wire. And where was this wire? It was through the evelets. | Had vou ever seen similar wire like that before on tarps? | I had never seen it pn tarps. no. Had vou ever seen it used by the Great Northern or ‘tthe Spokane International Railways’ Not on tarps. no. “Had you ever seen it in use by them is what,t shoul { have said’ Yes. it-is around the freight house - “* THE COURT: What do vou mean. wire of that kind is around the freight house’ THE WITNESS: Yes. (By Mr. Deglow Have vou seen that or similar wire - ‘on more than one occasion. Mr. Ross’ Vex } - | : And was that used to sour knov.tedge by the Great Northern and or the Spokang ‘International ’ I don't know too much about the Spokane Interns tional. no , Had vou seen thet used by the Great Northern _ (Record page 107! Ross says ‘he recalls this wire looked like Your job will be on the whole evidence as vou hear it. te ser. whether or not there is or is not any similarity or whether vou think so from what vou have heard thus far or hereafter Keet in mind it is merely to illus trate what he says the wire looked khe to him as hest he knows at thar time. Do seu have thot in mind. not to be confused as though it were the wire or that anvehiny of the kintd’ Ts that clear’ All right. With that admonition. if may be used QO. > > 50 : (By Mr. Deglow) Maybe I should refresh your recol- lection. This wire that you saw on this particular tarp was only some four to six a long, is- that right, Mr. Ross? What I can remember. ves. Would you pass that to him? “MR. DEGLOW: May the jury see that and feel that wire? : es. THE COURT: Yes, they may. C: (Whereupon, the exhibit was passed to the jury.) .. (By Mr. Deglow) Prior to this time, had you ever seen any wire in any tarps furnished to’you by the _ Great Northern. for use in covering loads-on their railway cars or piggy-backs or trailer? I never noticed any wire. And this wire I take it vou saw on some two of the evelets? _ (Record page 108) I recall two. ves. ‘OK. Now-- - THE COURT: Now. excuse me, do véu mean you saw just two little pieces four. to six inches on two of the evelets? : THE WITNESS: Yes. : THE COURT: Do vou know whether it was two or three? * THE WITNESS: I would. say three, as much as was unfolded at that time. (By Mr. Deglow You didn’t have it coshpletely un- folded at anv time. to vour knowledge? | : No. SN What happened to yo after vou had given the way bill to Mr. McFarlan and gotten up an started to unravel the tarp? I got back up on the I ad. and at that time m\ brother. Ff : O ‘o O > QeO> 51 Jerry. was. there, he said. “We are going to have to turn the tarp. We are going to have to turn it. Did vou turn it? # We were in the process 1 stepped across the load Yo the south side at that time. And then what happened ai that time? I reached down. we were pulling and stretching or moving the tarp out. and I was over the side. . (Record page 109) Now. ¢an vou recall to the jury how this tarp felt as you were endeavoring to unfold it prior to the time that vou went over the side? THE COURT: When you sav “went over the side,” do vou: mean vou fell off? THE WITNESS: Yes. (By Mr. Deglow’ Mavbe I should clarify that. Is * that that vou went off this side rather than sav the end of it? Yes. 1 was off about the center. Off about the center of the load-where the tarp was’ Yes. Going back to mv question. would vou describe from your recollection how that tarp felt up to the time vou fell off this load? ~ Well. we were having a little trouble moving it. not too much, and as I was unfolding it and turning it. it seemed to give wav and I went over the:side. Now. Mr. Ross, about how manv tinfoldings of tarps had vou done in covering of loads prior to the date that vou had vour injury on similar trailers’ Nume rous times. a number of times. Had vou ever had any difficulty in putting the tarp or unfolding them before like on this occasion’ Did vou have anv similar difficulty before’ T never had ‘too much trouble v ith tarns before OF OF 0 . “OF0 (Record page | 10) Incidentally, also, Mr. Ross, this last car here (indicat- ing), is this called the gondola car? . That is called the gondola car. And the tarp that you were unfolding, has that got a name for it? Well, we figured it previously had gone on a dia. Do you mean this tarp had prev iously: been .on a goh- dola car? Yes. Was that similar to the tarps that you previously used in covering loads for the Great Northern? Well, they didn’t have too many at that time. This was early, we just started moving aluminum for them on the flatcars or on the flatbed trailers. CO Did Riverside Warehouse ever furnish tarp to them for covering these loads? | Not that I know of. And this tarp then was a gondola tarp rather than the ; other type of tarp vou had been using. is that correct? Yes. , Now, just briefly can vou describe what the difference would be between the gondola tarp that you had on top or the other type of tarp that vou had used before? : Well. they would be ov ersized. MR: WETZEL: I will object unless he will base this un personal knowledge. Mie es (Record page |! 1) MR. DEGLOW: That is all we are asking. “THE COURT: Make that plain. ‘By Mr. Deglow) This is vour knowledge. is it not? This is my knowledge only. : And it is on your feel of the tarps and vour sight of the tarps? . Yes. iti Ore 53 Your carrying the tarps and your unloading the tarps.’ Yes. | 3% You are not talking about someone else’s—what some- body else told you. vou are talking about what you * saw and felt? That is what I know. yes. Now. after vou went. off the side of the car, what happened? THE COURT: Excuse me. This now turns to a new subject, doesn't it? | MR. DFGLOW: Yes. THE COURT: I mean vou have concluded about the business of his fall? MR. DEGLOW: Yes. Your Honor. © THE COURT: This would be a good time for a subject break. MR. DEGLOW: Fine. THE COURT: We will have the morning re- cess. ladies and gentlemen. . , (Record page | 12) (Whereupon, the jury withdrew from ule Courtroom. iW hereupon. a short recess was taken. ’ * THE COURT: All present. MR. DEGLOW: Judge. in looking over my ~ notes here. I have about two or three questions leac _ing up to the fall. I would like to go back. THE COURT: You may do that. Go ahead. (By Mr. Deglow) Mr. Ross. prior to the time before thé time vou fell off and talking about unraveling or - unfolding the tarp Yes. Do vou remember that’ Yes. - 54 Q. Now, would you just describe in your own words your °. e oO o. reasoning and your opinion as to how you happened ‘ to go off this load of aluminum respecting the tarp? MR. WETZEL: Objection, Your Honor. That has been asked and answered. MR. DEGLOW: I don’t think it’ has. THE COURT:: He may again state the matter. © Go ahead. MR. HAMBLEN: May I join in the objection, _ Your Honor. He has asked him for his reasoning and his ¢, inion. : THE COURT: (Well, there may be something to that. (Record page. ! 13) Rephrase the question, please. (By Mr: Deglow) Tell us how you happened to lose your grip on the tarp and fall off the loady » * THE COURT: Let me put it this way, just tell us again, Mr. Ross, what you did at the time and what happened to you. Well, as I was moving the tarp and unfolding it, I ran into trouble, or it was holding up, and I braced myself to keep the tarp moving and unfolding, and something gave way. And I stepped back, I slipped. my hand slipped, I was over the side. I catapulted to the ground. I did not touch the side of the car. Now, was this load of aluminum there stepped down in size like steps of a ladder? ; I believe it was, ves. By steps; I mean if you're looking at it longways, say, looking at it this way on this load (indicating) the aluminum was there sort of little protrusions the skids or aluminum in the form of steps? Yes. e About how far did they stick out frqm, say, level line of the load, if you can ‘recollect? o> > > © Or 0 Oo» FOPOFOLOFO 55 What I can recollect, the bottom of the load cov eal the bottom of the trailer which is eight feet. I see. Now, Mr. Ross. you fell down to the concrete. | = o | (Record page 114) take it? Yes. What: part of your 7 hit on that concrete first. _ what was the first part. if you know; that hit the con- crete? ‘ Well, on the bottom, right across the bottom of the “back. Any other parts of your body hit there? Then I was flung back and my head hit it, I was thrown back, whiplash, I believe is what they call it. - How did you feel? I didn’t feel anything. I sce. Were you in any physical pain at that time? ‘I was just numb. What happened? I believe I tried to get up, ves. Were you able to get. up? I tried to. I don't think I made it, no. Did you— . (Interposing) The first I can remember I was trying to get up. —— cas I see. Did you stay there at that spot? I arm sure I stayed in that’ spot. Later on did-an ambulance come and pick you up and take you some place? :, I believe I was. picked up by an ambulance. Were you taken "P to the St. Luke’s Hospital in Spo- kane? ; ore. oO. per OFO FOF OD iO ? I can’t remember that. no. 56 "(Record page | 15) Yes. ‘ Now. how were you put aboard this ambulance? Did you walk aboard there? No, I was put on a stretcher. I am sure, I mean— — ., O.K. What happened to the load, if you know? Well, I can recall one or two ‘things. I said, “Let’ s finish tarping the load” is all when I was there on the ground. : Then, you went to the hospital did vou not? Yes: - And do you know where they took you and win they did to you in there? Just briefly describe where you were and what‘happened to you from the time you got there? Well, that is pretty vague. . ed .- Tell us what you can recall. I can recall‘them trying to take my clothes off, parts of it. I mean, I had a‘leather jacket on and { don’t know how they got them off, no. Do tou remember them taking you into this X-ray _ room? . I can remember part of it. ~ Do you remember talking to vour wife? She, was there. Do you remember talking to her? Ves. ; Did you talk to Mr. Wellman this evening? (Record page | 16) Do you remember talking to anybody besides your wife and the doctors or the people working .on you in the hospital? i o> 5/ I believe I was “talking to the denier. q don't know . what. the conversation was, it was vague. ‘ Do you remember being in pain or being free from pain during this period of time in this first evening’ No. Where did vou hurt? . Well, I had a terrific headache 4 ‘and— Any particular parts of vour body give you discomfort’ { Well, I was having trouble with my legs. I had to kgep moving. I don’t know why. I think I remember that. ° WwW hat de you mean vou had to-keep vour legs moy ing.’ Well. I don't know. I was just.more or less thrashing back and- forth. . Were you standing and walking when vou did that.’ No. . Where. were you? IT was in bed i I see.” Now. do you know whether or not vou were given medication and treatment there by the doctor? ‘T couldn’t tell vou that. no. ; . Now. the next dav—*imcidentally. how long were vou in the hospital before votf went home? (Record page 284) Incidentally. to vopur knowledge. is there an interstate commerce requirement that vour drivers-of trucks on loads like this comply and take a physical examination with respect of vision every 36 months” Yes. there is. And if a-driver fails to pass the. vision requirements as prescribed by the Interstate Commerce Commission. will he be allowed by vou to drive a truck of material in interstate commerce? bet ) — a § =. & ' ae gf ov J ° Py bo , . i . < 5 | = p © ir $ => pe NOs eee Pe” ee te : iF are Lf r= : f ; y ‘ é “A. he wouldn't be permitted to. ‘We are under their 2 latiéns. - . . Q.. Neee. And this, would be of thgse movements that sore id be- governed as to whether or not he complied the Interstate Commerce Commission require- _ ments? Ks e% Ae ee A. Yes, ‘it would... °-” os ©. At any time, to your knowledet. had Mr. Ross ever _ failed in ariv eve examination for driying? A. Not tomy knowledge, .n& ©. Prigr to. March 19\1959, had he made any coviipthinis to you whatsoever about his inability to see in driving _ or performing those i . e \A No, he hadn't. e oe | . SS prior to- March? 19, 1959, had you iade' a xy . ii My 8 vear safety ‘award to Dale Ross? “Os: Prior to 1959? z ‘i 7 (Record page 285) ap Yes. | . We, . e. , ig (. For serviceMprior to .1959 am c & A. He has a long safety recoyd. I think ‘that ‘award was _ » made here this present yea. on: A. Yes. i : a | i e Qo. QO. - Now, vou weren t out there at thé scene when he was injured, were you? ‘ A. No, T wasn't. ne QO. When did you first hea about it and ‘where were vou? bd 2 A . : . rs e . ° wal I was home at the time and I don’t recall the exact. time of the evening, it was in the evening. I was called by Mr. Ficka who is-our operating superin, tendcym * _ 4 : Yaa , O. Would you say that would be, say. a five to six a : agalock you would have been home or mavbe a. little later? : A. .T generally don't get home until after six. eo Sil acing .. , Or . ogee} wv ; Now, did you-— Seem oe ry ape) 4 59 : fia paee J (Interposing } Probably a litle ad Gri Did you go down tg the hospital?” ? | ‘Yes,.1 did. - Did vou see Mr. Emmett Ross there? 245 T don’ t recall seeing him, no. ° 6, Do you recall seeing Mrs. ion there? Yes, I did. : eg Incidentally. what time did you get. there? I don’t recall exactly. I muted I waited, he was not in i (Record page -_ fifth wheel? Yes, vou could sav that. | pe And calling your attention to the train and the mock- up here, fhis is where vou were . sini ‘g . ‘That is right. ; Down under here. ‘THE COURT: You are pointing now under-: neath thestruck bed, I mean the bed of the flat? (By Mr. Kimer) Pointing under the bed. With the absence of the tractor. Sie Tractor is out and then there is the fifth wheel that ° you put. down wird : Yes. Am I understanding vou were down here and Dale and his brother on top of the load? That's right. Prior to. his fall? 7 Yes. ' Now. Mr. Griffin, did vou observe any wire in this tarp before Mr. Ross fell? Prior to his fall, no. oe Q. - Did you observe any wire in the tarp after he fell? es Yes. Be: | | i QO. What kind of wire was it? « Well, it was heavy binding wire. © - [Record page » 381) ee Q. Would it be similar to this wire, Mr. Griffin (indicat- ing) ? ee _* It could have very easily ‘been. + Heavy wire? | Q | -# A. Heavy wire, yes. | Q. . Were these wires in, the eyelets of the tarp? * 4 . Ves. Q. Showing you this for- iliustration, Senitar’ to that only. larger, of course? | A. Yes. . . ae : QO. And were these short pieces | of wire, ion pieces of wire? | MR. WETZEL: I object to the Jeading forth a ‘the question. — ‘THE COURT: What kind of wire was it? THE WITNESS: Fairly short: QO. (By Mr. Kimer) State whether or not the wire was bent. or straight? z : : - A. Well, it was in pieces. - .Q. Different lengths? — . ea A. I believe they were, ves. - Q. ‘And do you know whether o or not thev were sharp. on: ~ a the end? A.. , Yes, I believe. you would sav thev were, sharp. e _ little bit. - 6] <= De you know why they were ‘sharp? I presume because they were cut off when the t tarp _ was removed. You observed these in “the tarp after’ Mr.- Ross had. 2%- fel ss (Record page 382) | MR. WETZEL: Objection. : re THE COURT: Don’t lead, : please, counsel. (By Mr. Kimer) State whether or not you observed these in the tarp after Mr. Ross fell. .(. ewe Me ‘ Now, state wheter pe not the train was waiting there for the load. 4 The train arrived shortly after the accident, as I recall it. me Ane en . And can you state why, if you know, shinee were dist of you working on this particular load? Well, the time was growing short and I was assigned as an extra man to expedite the shipment. speec it up a Now. state whether or not this was a large tarp or a smail one. . It was an adequate tarp to cover the load. Incidentally, do you know from vour own knowledge. Mr. Griffin, whether or not- the Ross*Transfer owns large tarps or small tarps? . They have a dozen tarps of various sizes: they have large ones and small ones. Did vou work with Mr. Ross-do vou work with Me. ’ Ross now? No. Oreo «> . 0. _L.don’t- remember seeing wires then. - fairly out. 62 (Record page 401) : (By Mr. Deglow) " Before he fell, Mr. Ross, I am referring to your brother now, when you were up on the load, what you saw with your. eyes, describe every- thing that you: ‘say that was visible. to veu respecting this tarp, and I am talkifig about the tarp now? We had the tarp I wasn’t concerned with what was in it. I saw that it was folded. We had it folded out. Now. Yes. are you through? After your brother. was down on the concrete and . after you got up, did you complete any work respecting. . tarping this? Yes. - » Would vou ‘describe to the juty in- relation to the tarp what you saw during the progress‘of your work ° up.to the time that you completed tarping this load? I don’t remembe: tarping the load but I remember the wires. I don’t remember anything. Where did you see them and what did they look like? -T just know I saw the wires there but I don’t remember —-~we mav have used-the wires to tie the load down but I don’t remember. I don’t remember tarping it. How many did you see? I don’t remember. Showing vou from here Exhibit No. ]0. would vou state re ae o! (Record page 402) ‘whether or. not vou saw that or similar wire pieces qn this tarp load? I saw similar wire. All- right. . MR. DEGLOW: That is all: THE COURY: Cross-examine. please. . a eee A we ee CROSS-EX, AMIN ATION: BY MR. WETZEL: -& ." O. On the day of the accident, you were cmploved by Ross Transfer the same as your*brother, Dale. is that , > true? : Yes, sir. And you were also a truck driver? Yes, sir. , ; oe: Yes. \ Q 4 ©: And you were © wagrking on piggv- back, ? \ QO. And Dale was in charee of piggy- rows was he not? Ne - A. He was in charge. Right at that moment. I would say he was in charge. QO. Now, just to refresh vour recollection. at the time bot this accident. vou were helping. Dale and Tom Griffin tie down the load? a wk. O.. Now. was Tom Griffin securing the trailer to the tiat- car? : | A. Yes. (Record page 417) CA. I don’t recall or no—no. | didn't sav that. ~ ies ay OL” Well. when Mr. “Gerkensmeyer. was there. did you _ discuss how you thought this injury to vou had hap pened and how vou went off this load? A. No. We did not diseuss it. O. About how long was he there? A. T would sav fiftcén. twenty minutes.. » \ MR. DEGL OW: ‘That is all “THE COURT: Cross. A MR. KELLEY: I missed it. vour Honor. I apologize. By “there” ees, « lg 64 S ~~ “ al ra *. THE COURT: At the house, I assume he means, fifteen, twenty minutes. | -MR. DEGLOW> That is right, at the house. - CROSS-EXAMENATION - Y MR. WETZEL: Mr: Ross, you don’t recall what Mr. Gerkensmever said this morni..g? I recall. | ae - 72 oe Pardon? | ‘I recall what he said. I thought you said you didn’t recall? I- said I recalled — hie had said. I know what he said, yes. . ae a & ‘ Od . rFOrOoFr - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1107%3A2. Public record. Not legal advice.