# Opposition Brief — Bencel v. Frost > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0725%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1965 - **Citation:** 382 U.S. 831 ## Text _ 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 | \ \ . 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. ‘ - \ 5 Xr | / 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,