Opposition Brief — Bencel v. Frost

_ SEABOARD AIR LINE RAILROAD. COMPANY, |

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI |

TABLE OF CONTENTS | %

as Page

J: OPINIon BELOw ............. Riaiiaah healdageuiltbeqciepionntuneenatiainioteins 1

| $8: yeiehialeiiin csvheceeeentegntone Pred eer anere Ree ee canis 1

Ill. Tue a PRESENTED seeeeecntennssssssseeeeceeeecnnntannasess ie

IV. STATEMENT OF THE CASE ...... OSES Mester are er 2

1. Mr. Ambold’s Own Version of His Fall con =

2,. The Scene of the’ Fail ae aK Res OADEmeNer NORTON 4

3.’ This Was a Unique Accident | 4

4. The Work in Jacksonville Was Different siehatie as — 5

5. The Expert Testimony - ania i eaewrae 6.

V. ArcuMENt a | nen B

i. The Railroad Was Not Guilty of Negligence Which

Caused or Contributed to Mr. Ambold’s Injuries atin 7

2. Mr. Ambold’s Own Negligence Was the Sole Proxi- :

mate Cause of His Injuries . °14

3. The Facts of This Case Do Not Warrant the Granting

of a Writ of Certiorari ; 15

IE BD poiktdccdintoncicctiosniicens . nscanee, 17

‘TABLE OF CASES

eT. Page

Atlantic Coast Line R. Co. v. Collins, 235 F. 2d 805 (4th Cir.

1956) cert. den., 352 U. S.:942 (1956) | 10, 14

Atlantic Coast Line R. Co. v. —_— 185 F. 2d. 176 (4th Cir.

1950) cert. den., 340 US. 952 CRIED: scinichnniecsineniiiscates 8, 13

Davis v. Baltimore & Ohio R. Co., 379 U. S. 671 (1965) . eran:

Dessi v. Sanne R. Co., 251 F. 2d 149 (3ra Cir. 1958) ‘cert.

* — den., 356 U. S. 907 (1958) | 7

Inman v. Baltimore & Ohio R. Co., vr U: S. 138 (1959) ..10, 11, 16

Rogers v. Missouri Pacific R. Co., 352U. S. 500 (1957) cevcsenee 7

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a eer meee Hea eee .

In The -

7 Supreme Court of the United States: |

October Term, 1965

No. 300

THORNTON R. AMBOLD,. , |

ike Petitioner, .

V.

‘ SEABOARD AIR LINE RAILROAD ‘COMPANY,

: Respondent.

BRIEF IN OPPOSITION TO PETITION _.

FOR WRIT OF CERTIORARI a

Bay

a,

JL

| OPINION BELOW |

' The opinion below jn the United States Court of Appeals

for the si go! Circuit has been printed since the petition —

for writ o tiorari was filed and is — at 345 F.2d

30 0 (th ci f. ae

JURISDICTION

The jurisdictions’ requisites are properly snd adequately :

set otit in the petition 7 writ of certiorari.

‘ -

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5 Xr |

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mm.

_ THE QUESTION PRESENTED '

The sole question presented by the petition is whether the .

trial judge, thé Honorable Sterling Hutcheson, of: the .

United States District Court for the Eastern District of,

Virginia.at Richmond, and the United States Court of

‘Appeals for the Fourth Circuit erred in holding that there

was. insufficient. evidence to. support-a’ “verdict obtained by”

pétitioner, hereafter called Mr. Ambold, against respondent,

hereafter called the Railroad, ina Lisle’ sind ae Lia-

bility Act case.

Iv. | )

_.. STATEMENT OF THE CASE

Unlike most Federal Employers Liability Act cases, thtge’

is no real conflict in the testimony here. Indeed, there were

no eyewitnesses to Mr. Ambold’s i injury, a fall he sustained :

on April 8, 1961, while working i in the Railroad’s diesel shop

in Richmond, Virginia, so his, own testimony as to how his -

accident ooemesd is uncontradicted and served as a basis

- for the action of the Court of Appeals in affirming the Trial

Court’s action in setting aside his verdict. Despite the lack

of conflict in the testimony we will restate it to arrange it in|

an orderly fashion for purposes of —:

‘or Ainbold’s Own Version of His Fall

_ Mr. Ambold was-first employed by the Railroad in "1942,

He had been doing exactly the same job’he was doing on

April 8, 1961, for fourteen or fifteen years (Tr. 28). That

day, as for many years previously, Mr. Ambold was em-

ployed at the Railroad’s Hermitage Yards in Richmond,

_ Virginia, as a machinist in the diesel shop. His duties con-

- sisted of checking air brakes on diesel locomotives.

3

Just before lunch that day Mr. Ambold was on board

Diesel No. 1922, checking its air brakes. The locomotive

‘was in a stationary position parallel to a raised wooden plat-

form, called the shop platform. The locomotive has a metal,

-corrugatéd catwalk running alongside the. engine with

stanchions running vertically from the catwalk to the hand-

- rail above it. From the edge of the catwalk to the shop plat-

- form is eleven iriches, At the end of the locomotive is another

corrugated metal walkway called the diesel platform. The

catwalk, the diesel platform, and thé shop platform were 2

level with. one another, designéd so that workers need not

climb up and down while carrying tools to gain ready access

to the locomotive. According to Mr. Ambold, it is 32 inches

from the diesel platform to the shop juin across the

| stepwell (Tr. 7).

Although the stepwell is 32 inches across, and about two

” feet wide, there is a handrail on each. side of the stepwell.

On the left side the handrail runs along the catwalk until it

intersects at a right angle with the stepwell and is, conse-

quently, eleven inches from the shop platform and twenty-

one inches from the beginning of the.stepwell. Since it inter-

sects at a right angle, it does not parallel the stepwell. On

the right side there is a handrail which does parallel the step-.

well and descends as ‘the steps in the stepwell do (Pl. Ex. 1,

. Tr, 48).

After he finished hia the locomotive Mr. Ambold

went to the diesel platform. at the end of the locomotive to

step off onto the shop platform for lunch. As he stepped ©

from the locomotive platform across the stepwell, he slipped.

and fell to the concrete shop floor beneath. He had nothing

in his hands at the time he fell (Tr. 31).

-Mr. Ambold testified very — and fairly why: he fell

(Tr. 35, 36, 46) :

v

4

“Q Allright. Now, why did your foot slip?

“A Just didn’t go far enough on the platform.

“Q. In other words, you didn’t make a long enough step,

is that right? _

“A I misjudged.

i

“Q You just didn’t take a long enough step?

“A That’s right.”

2. The Scene of the Fall’

Immediately after his fall, Mr. Ambold reported the inci-

dent to Lyman E. Jarratt, his foreman. Shortly thereafter

Mr. Jarratt went to the scené of the accident, inspected it,

and found no grease or oil or anything else on the shop

platform (Tr. 131). Mr. Ambold also testified there was no

foreign matter on his shoe, on the platform, or epee

around (Tr. 36).

Lighting conditions in the diesel shop were good that day.

Mr. Ambold testified that the weather was good and that

he had no difficulty seeing where he was going (Tr. 36, 37).

Mr. Jarratt testified that the lighting, which came from both

the skylight overhead and the open door at ia end of the

pit, was good (Tr. 13}).

3. This Was a Unique Accident

Although Mr. Ambold had been taking the same step, day

, after day, fifty or seventy-five times a week, for years

prior to his fall, he had never fallen before (Tr. 30, 31).

When Mr. Amboid returned to work after his fall he con-

tinued to take the sdme step just-as frequently for another

two.and a half years, and he never fell again (Tr. 30, 31).

Neither before or after his fall did Mr. Ambold make any

- complaint about having to take the step, nor did he make

5

any. suggestions about using a ramp across the opening be-

tween the diesel platform and the shop platform when tak-

ing the step (Tr.:37).

Mr. Jarratt, the diesel shop foreman, an employee of the

Railroad for fifty-one years, testified that never before or _

since in his experience in the diesel shop had anyone fallen.

while taking the same step from a locomotive to the shop ~

platform, a step his machinists take fifty or more times a

day. No one has made any suggestion to him, either before

or after Mr. Ambold’s fall, that ramps should be provided

for use of those stepping from a locomotive to the shop plat-

form (Tr.,135,

4. The Work i in . Jacksonville Was Different

Mr. Ambold offered evidence, over objection, to show

that metal ramps were used to get to and from locomotives

and the shop platform in the Railroad’s shops in Jackson- —

ville, Florida. The evidence showed, however, that the

situation in Jacksonville was completely different from the

situation in Richmond. Only Mr. L.. A. Ellis, another ma-

chinigt employed by the Railroad, testified about the Rail-

road’s Jacksonville shop. He testified that the metal ramps

were placed inside the metal stanchions which run along the

locomotive’s catwalk up to the handrail and that machinists

in Jacksonville used the ramps inside the stanchions under. ©

the handrail to go back and forth between the “— platform

and the locomotives (Tr. 73, 74).

Mr. Ellis also testified that machinists did not go under

the stanchions in Richmond, although the distance in going

that way to the shop platform was only eleven inches, be-

cause they ‘would have to duck down to get beneath the hand-

rail. (Tr. 70).

Mr. Ellis testified that dead work, that is, work requiring

twenty-four or more hours to complete, is done i in the Rail-

6

‘toad’s Jacksonville shop. This work involves, among other

work, dismantling locomotive engines and taking off heavy

parts and removing them from the locomotive to the shop

platform, The parts were handed across the ramp or, if they

were heavy enough, pusheéd‘or slid across the ramp to the

shop platform. Machinists working on dead work in Jack-'

sonville from time to time carry tools across thé ramps also

' (Tr. 91-95).

By contrast, only minor repairs, those requiring between

one and eight hours to complete, are done in the diesel shop

in Richmond. Dead work, requiring more than eight hours

to complete, is done in the roundhouse or in the yard

(Tr. 94-96, 101). ;

Finally, the shop platform in Richandid i is substantially

closer to the locomotive than it is in Jacksonville. In Jack-

sonville the opening between the shop platform and the loco-

motive is six to eight inches or 20-25 per cent wider than i in

Richmond (Tr. 90). |

5. The Expert Testimony

| Mr. Ellis was permitted to give his. opinion whether the

_ step Mr. Ambold was taking when he fell was hazardous.

‘At first Mr. Ellis said.that if a person were not extra

cautious he would slip and fall in taking the step, although |

Mr. Ellis acknowledged he himself had taken the step on

- numerous occasions and had never fallen or made com-

plaint about it (Tr. 77, 100). Mr. Ellis went on to $aY, how-

ever (Tr. 96, 97): |

“O Now, just a moment ago you said that whether this

was a hazardous step or- not would depend upon the time OF,

day and the lighting, did you not ?

“A -That’s true.

J

“Q All right. Now, explain to us when this would not

be a hazardous step.

“A. Like that light there now that you have up there

that’s illuminating this floor which we have overhead, if it’s

a good light there, you can see. But if that light is out, you

cannot see.

. 7 ee -

“Q All right, if it’s a light day outside and it is the

middle of the day, is there anything hazardous about mak-

ing this-step? A

“A No, I wouldn’t say it was.” —

Mr. Ellis was furloughed from the Railroad at the time

of Mr. Ambold’s accident and consequently knows nothing

about the circumstances surrounding it (Tr. 91,95).

V.

_ ARGUMENT

1. The Railroad Was Not Guilty of Ficaligunel Which Caused

or Contributed to Mr. Ambold’ s Injuries :

We agree that since the decision i in Rogers v. Missouri

Pacific R. Co., 352 U.S. 500 (1957) it has been clear that if

employer negligence played any part, even the slightest, in a

railroad employee’s injury, a jury question is presented un-

der the Act. This does not mean, however, that’a plaintiff

is relieved of the burden of proving: some act of negligence

on the part of the railroad. As the court pointed out in Dessi

v. Pennsylvania R. Co., 251 F. 2d 149 (3d Cir. 1958), cert.

den. 356 U.S. 907 (1958), in seesiinnniys ~ —— case, at

p. 151:

“This language [in the Rogers case] indicates that

the role of a defendant’s negligence in helping bring

‘about the injury may be small. It does not suggest that

| 8

an F.E.L.A. plaintiff can carry his butden of proof

without evidence that the role was real. Indeed, the

paragraph containing the quoted sentence continues

with this observation :

* ‘Judicial appraisal of the proofs to divecinine

whether a jury question is presented is narrowly limited’

to the single inquiry whether, with reason, the con-

clusion may be drawn that: negligence of the —"

played any part at all in the inquiry or death. .

“The repeated use of the phrase ‘with seaaiist—-it

appears three times in this ‘Short paragraph—is a

persuasive indication that the court intended no de-

parture from the familiar and normal requirement of

our own jurisprudence, as repeatedly stated in its own

. rather recent decisions; that the party with the burden

of proof must ‘present probative facts from which the

a and the causal relation come seared be

inferred. . ‘ie

Therefore, Mr. Ambold had the burden of proof to show

that the Railroad was negligent and that its negligence con-

tributed to his injuries. Here Mr. Ambold contends the Rail-

road’was negligent in failing to furnish him a safe place to

-work.-He makes no other contention of negligence, nor

can he.

But the Railroad’s duty was only to furnish him a reason-

ably safe place to work, not an absolutely safe place to work. |

As the court recognized in Atlantic Coast Line R. Co. v.:

Craven, 185 F. 2d 176 (4th Cir. 1950), cert. den. —- S.

952 (1951), at p. 178:

“An employer has the duty to provide tits uaitiicgees

_a safe place to work, but this duty cannot be absolute.

Dangers are implicit in such occupations as railroad-

ing, ° “gl railroads are not insurers of their em- ™

ployees. .

9

Merely asserting that the Railroad did not, furnish him

a safe place to work is not evidence either that it did not

furnish a safe place to work or of negligence. Mr. Ambold’s

theory of liability is that the Railroad was negligent in re-

quiring him to take a step of thirty-two inches from the loco-

motive to the shop platform. While counsel for Mr. Ambold

consistently refer to the space As being from thirty-one to

- thirty-five inches, that distance is an estimate made by Mr.

Ellis, who was not even employed by the Railread at the

time. Mr. Ambold testified.that the distance was thirty-two

inches, no more, no less, and he was the only’ eyewitness and

should know.

Mr. Atmbold makes no contention that the area was poor- _

ly lighted or that the platform was slippery or uneven. To

the contrary, it affirmatively appears from the evidence that

the area was well lighted and that there was no grease or.

any other foreign: object on the platform. The shop plat-_ -

form was level and was at the'same height as the locomotive

platform from which Mr. casas was stepping when: he’

fell. |

Counsel for Mr. Ambold argue in their petition that the

~_evidence did not show whether the windows and the sky-.

_ light in the shop-were clean or.dirty. But Mr. Ambold’s own

testimony is that the-area where he was working was well

lighted. Certainly the burden is not upon the Railroad to

_prove that the windows.and skylight were clean when there -

is no evidence they were dirty, and the uncontradicted evi-

dence is that the area where Mr. Ambold fell was well —

_ lighted. |

Only if.a thirty-two inch space to be crossed, with hand-

rails available at approximately midpoint on each side of -

the space, in and of itself is not a reasonably’safe place to

work did the trial court commit reversible error in setting

10

the jury’s verdict aside. The standard Army marching pace

‘is thirty inches: distances are generally paced off in roughly

yard lengths. A thirty-two inch step is simply ‘not strained

or unusual in any sense of the word, ever less so here be-.

cause of the availability of handrails to assist one in cross-

ing the gap. Mr. Ambold was furnished a reasonably safe

place to work. The only evidence he offers to the contrary

is the mere fact that he fell,.and the mere happening of an

accident is not evidence of negligence, Atlantic Coast Line

RCo. v. Collins, 235 F. 2d 805, 807 (4th Cir. 1956), cert.

den. 352 U.S. 942 (1956).

This. same. space has been crossed safely by Mr. Ambold

and his fellow workers literally hundreds of times a week

both before and after Mr.: Ambold’s fall. No one else has

ever fallen before or since. No one has made complaint to

_ the Railroad that the crossing was dangerous in any sense.

- The situation does not suggest danger, and theré are no

facts in evidence from which the Railroad could peasy

have anticipated any danger."

- In Inman v. Baltimore & Ohio R. Co., 361 U.S. 138

(1959), the decision of this Court closest i in point to the

case at bar, the plaintiff, a railroad flagman at a grade cross-

_Ing in a city, was struck by.an automobile at. night while .

stopping traffic at the crossing, The plaintiff contended the

railroad had failed to furnish:him a safe place to work. The

Court of Appeals of Ohio reversed a jury verdict for the

plaintiff upon the ground that no marae on fe rail-

.road’s part had been shown.

This Court, by divided vote, afirmed This Court said,

at pp. 140, 141:

.In theasuring Ohio’s disposition of the case here.

as Rogers yardstick, we must affirm. The Act does |

not make the employer an insurer. Here petitioner had

Pa

'. been: taken literally thousands of times, both before and .

11 ne

been. working at Bettes Corners for seven years, per-

forming these same duties under like circumstances

and, for some three years, on this identical midnight

_ shift. No accidents had occurred during that long

period. In light of this background, we believe that the

evidence here was so thin that, on’a judicial appraisal,

. .the conclusion must be drawn that negligence on the

part of the railroad could have played no part in péti-

tioner’ s injury.

. The burden of proving that the crossing was an’

unsafe place to work was on petitioner. It depended on

some type of testimony showing the hazards at the

. crossing. There is no evidence of complaint to the rail-

road, nor is there testimony of similar occurrences in

the record. . ;

The evidence in the case at bar goes even yrarer, than.

the evidence.in the Inman case. In the Inman case there was

_ no evidence of any-complaint to the railroad and fo evidence

of any similar occurrences. Here, in addition, there is affirm-. °

ative, uncontradicted evidence that, although this step had

after Mr. Ambold’s fall, no one else ‘had ever fallen.. There

is affirmative, uncontradicted evidence that no one, not Mr.

Ambold, not Mr. Ellis, his. safety expert, nor anyone else,

ever complained about the step. Mr. Ambold’s fall was cef#

_tainly not as foreseeable as was the possibility that a flag

man at a grade crossing might be struck by an automobile

at night; yet in the Jnman case this Court held the evidence

was insufficient to create a jury issue as to the railroad’s

negligence. Of necessity, then, the evidence is insufficient

here, and the decisions of the two courts below should not

be disturbed. ; g

Mr. Ambold presented evidence that neta ramps were

used in the Railroad’s. Jacksonville shops. for going and

12

" coming between freight locomotives and the shop. platform

there. Upon this evidence Mr. Ambold contends that the

Railroad was negligent in not furnishing similar ramps for ©

use in the Hermitage diesel shop where he fell.

But the uncontradicted evidence showsghe circumstances _

under which tk ramps were used in Jacksonville were com-

pletely dissimilar. from the situation at Hermitage. In the

_ first placesthe distance from the locomotive to the platform

was six to eight inches greater in Jacksonville.

In addition, the ramps in Jacksonville were not put across

the stepwells but were instead placed inside the stanchions

from the catwalk to the shop platform. Use of ramps in the

manner used in Jacksonville would not:have prevented Mr.

Ambold’s accident. He could have gone under the handrail |

. (where the ramp was placed in Jacksonville) at the Hermi-

tage Yards if he had désired, and.he would have had a step

of only eleven inches to cover. He did not do so, knowing he

had crossed the stepwell hundreds.of times in complete safe-

ty. Furthermore, his own expert witness, Mr. Ellis, testified

- that machinists at Hermitage would not go under the hand-

rail because they had to duck down. :

In addition, the nature of the work done in Jacksonville

is completely different from the work done at Hermitage |

-and causes and necessitates the use of such ramps.-In Jack-

sonville dead work is performed in the shop. Heavy parts

are taken on and off locomotives and are passed across to or

from the shop platform. It is necessary té6 slide and push.

- some of the parts, and the ramp then is essential. On the

other hand, no such work is done in the diesel shop at Her-

mitage: Only’ minor repairs are made, not necessitating

\passing of tools or parts across to or from the shop plat-

_form. Heavy work of the type done in the shop in Jackson-

ville is } done i in the roundhouse or the yard at iciatieds

13

>» ©

sat.

Ri, ’ YY

Even if the comparison between the heavy duty work

shop at Jacksonville and the inspection shop at Hermitage ©»...

.. were valid the mere fact that some other method might have —

been followed at Hermitage is no evidence that the method

_actually followed constituted the step an, unsafe place to

work, The fact that some other method might have been

followed is not the test, as thé court so clearly: recognized

“in reversing the plaintiff’s judgment i in Atlantic Coast Line

R. Co. v. Craven, 185 F. 2d 176 (4th Cir. 1950), cert. den.

340 U.S. 952 (1951). :

In that case the plaintiff, a brakeman, was injured as

he attempted to cross a track blocked by a slowly moving

cut of cars. He climbed upon one car and in so doing fell .

and lost his leg. He contended that’the railroad failed to:

provide him a safe place to work because it should have

‘ furnished a bridge or tunnel to cross the tracks. The court ©

applied the proper test, at p. 179:

.. A confplete rearrangement of the yard, a bridge .

or a Pegs some system of traffic regulation might

have prevented this accident. The area majority of

railroad accidents (including those not involving negli-

gence) could by.some means be prevented. The test is

whether reasonable men, examining the circumstances

and the likelihood of injury, would have taken those

steps necessary to remove the danger [citations omit-

.¢ ted]. 9

hintiiee the test the court described in ts Craven case,

there are no facts in the case at bar from which reasonable

men could have anticipated the likelihood ‘of injury so as to

take steps to remove the danger. The Railroad fully com- ©

plied with its duty to furnish Mr. Ambold a reasonably safe —

place to work, and no verdict to the contrary can be sus-

tained.

+214

2. Mr. Ambold’s Own Negligence Was the Sole Proximate _

. ‘ ¢(Cause of His Injuries

d

- Mr. Ambold was a qualified, experienced. machinist at the

time of his fall. While he was sixty years old at the.time of

his fall, there is no evidence that he was physically incapaci-

tated or restricted in‘any way. Indeed, to the contrary, his

entire medical testimony was 3 that he was in asad con-

dition at the time of his fall. - !

When Mr. Ambold stepped from the locomotive to the

shop platform he was doing exactly what he-had ‘done, time,

after time, day after day, without danger or injury to him.

Mr. Ambold.did not attempt to explain his fall by claiming

that the area-was poorly lighted, or that grease or oil on his

shoe, on the locomotive, or on the platform caused him to

slip. Such was not the case, as he very fairly admitted. In-

stead he stated that he fell because he “just didn’t go far —

enough on the platform’; he just. “misjudged” his step

(Tr. 35, 36, 46).

Surely the Railroad cannot be held responsible because

once in 4 lifetime Mr. Ambold misjudged his step. He was :

as familiar with the step as anyone. else‘and was as alert to

any conceivable danger it presented as. anyone else. He

never complained about any potential danger before of after

his fall. He saw no danger in the situation, for there was

none.

In Atlantic € east Line R. Co. v. Collins, above, 235 F. 2d -

805 (4th Cir. 1956), cert. den. 352 U.S."942. (1956), an

employee claimed he was injured while throwing a switch

which was hard to operate. The evidence showed, however,-

that neither the plaintiff. nor anyone else had ever com-

plained the switch was hard to operate. The evidence also

showed the switch had worked properly on all other occa-

sions the evening the plaintiff was injured. The court held -

.&

that the plaintiff had not proved any negligence at all on the

railroad’s part. The evidence in this action is largely the ©

same; there had been no complaint about the opening, either

_by Mr. Ambold or by anyone else,<and employees had

crossed over it safely thousands of times without difficulty.

Just as there was no evidence of negligence on the railroad’s

part in the Collins — there is no. evidence of negligence

here.

If Mr. Ambold had not by his own eisintansy misjudged

- his step then theaccident would not have happened. Suppose

Mr. Ambold had been walking down a well-lighted, even,

dry stairway, had misjudged his step, had missed the bottom

step, and had fallen. “Would the Railroad be liable there?

Certainly not; the sole cause of his fall there would have

been his own negligence in misjudging his step. By the same

_ token, the sole case of Mr. Ambold’s fall here was a own

negligence in misjudging his step. .

_ 3. The Facts of This Case Do'Not Warrant the Genniing of

A Writ of Certiorari -

_ “Counsel for Mr. Ambold have cited a number of cases in

which this Court has upheld a jury verdict for an injured

~ worker in a Federal Employers Liability Act ‘case. The most

recent of these is Davis v. Baltimore sd Ohio R. Co:, 379°

U.S. 671 (1965). |

In the Davis case there was a clear conflict of testinnney

whether the in jured employee had himself negligently backed

‘a forklift truck-into an elevator shafteor whether another ~

employee had negligently left the forklift truck unattended,

allowing it to strike the employee, knocking him into the _..

* shaft. This Court held, perfectly properly, that an issue of

fact was presented for a jury’s determination.

On the other hand, we have cited a number-of cases in

this brief where this Court and other courts have held that

6

*. the evidence’ of a Railroad’s negligence was insufficient to

create a jury issue. Notable among the cases cited, because

of its similarity to this case, is Inman v. Baltimore & Ohio |

- R.Co., 361 U.S. 138 (1959).

‘®

What the citation of authority by. both cartion : really

means is that each Federal Employers Liability Act case is

decided on its own facts, Because the facts differ so frdin

_ case to case, decisions in other cases are helpful in re

a particular case only in a very general way.

This case does not present a complex. or involved set of Z

facts. There is essentially no conflict in the testimony, The

only issue is whether:a railroad is guilty of negligence in

asking a worker, unencumbered by tools, to cross a thirty-

two inch stepwell, with handrails available on both sides of

the stepweli, at a well-lighted, dry, level location. Not in any

' view. of the evidence can this amount to negligence, and the ©

two courts below correctly concluded that there was no evi-

dence of negligence. The facts of the case do not warrant

this Court’s taking its time to make a third appraisal of the -

evidence to determine the correctness of the. trial court’ s

17

“Vi

eer CONCLUSION

Because this case involves only determination of a factual

matter unique to it; and because the two courts below have

correctly determined that issue, the petition for writ of ©

certiorari should be denied.

Respectfully submitted,

ohh te a eee Eppa Hunton, IV

oe oa et Lewis T. Booker

Counsel for Respondent

Seaboard Air Line

‘Railroad Company

Hunton, WIL.1aMs, Gay,

. PoweE Lt & GiBson

1003 Electric Building

\ Richmond, Virginia. -

. . Of Counsel -

july:28, 1965.