Petition for Writ of Certiorari — Bynum v. United States

Supreme Court brief1966

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‘gun’ 4° 1965

"JOHN F. DAVIS, BLERK

eimmatiel

ts Wag AS etiam ny

In the , el

"Supreme Court’ of the United States:

1969 :

7 213

H. T. ‘Samzow,

Petitioner,

Missounr-KaNsas-Tixas RR. Co., a

” Respondent.

» . PETITION FOR WRIT OF CERTIORARI

‘To the Court of Civil po forthe 5th: Supreme

ae ~ dudicial District of Texas-- aes

- CHanrzs: ‘GULLETT, © - .

Citizens National Bank Bldg.

\ _ Rosert Doss,

| Citizens National Bank Bide.

Denison, Texas, |

and

Baker, JORDAN, SHAW &

FOREMAN,

1610 Tower Petroleum ‘Bidg.,

Dallas, ‘Texas, |

Attorneys for Petitioner.

ao see

WARLICK PRESS, INC.—-2263 VALDINA STREET——-DALLAS—ME 1-8130

{

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Rrra: ene et te eat mane Wry

_ SUBJECT INDEX

Page

Citation to Opinions Below ©0000. Ai Fee ror a

Grounds of Jurisdiction 0000.00.00... 5 Sinialistasalcch : oo

Questions Ne es Se ee 3

Material TN i ia a alia cai Ataatinedti 5

Manner of Raising Federal ss ee in State Courts .. ge 9

Reasons for Granting catia Te ee . 142

A. Erroneous Interpretation of Arpt v. S ao

Panhandle & Santa Fe Ry: Co. ..3....000cccee. 14°

B. Refusal to Reconcile the Jury Verdict mere eegioens ae

1. Effect of the Gallick Case. .......:.:.:........: A ceaitiie al -20

2. Specific Findings Control General Findings ace . 2

3. Effect of Negative Answet, to Negatively = * -:

IE Fash Ricans cnsavene .. 26

4. Reasonable : xplanation of the Jury Verdict en

; Conclusion See rere heree NOTRE. ARC me HOES ene ks roc tee Soe “33

Prayer ;...:........ ities Kaabii baecaacas ale 33 -

panos of Service sesadyenesenesenesananenenenererescesssnenessseecsapinceserenes 34

Appendix A — Opinions, Judgments, and

Ondlers of Courts Bakow °\.....20:0...0iccc6cescssccnpelececsssdeecnconbeie 35

A. Judgment of the District Court of |

cen _ > ___ CNR aa ie le ae aR od rere? aerere

ae B. Opinion-of-the Court of of Civil. aie Sire 45

C. Opinion of Court. of Civil Appeals’ | :

_ D. Order Refusing Petitioner’s Application for

__ Writ of Error and Order Overruling Petitioner’s

- Motion for Rehearing on Application for

‘Appendix B — Statute: Federal scores agrll

Liability Act anal Kerk Meermee sree, Pt. =Sr Ricca a Ada: 2

ek sein o : Index of Authorities *

‘ Arnold v. as e & Santa Fe Ry. Co., 353 U.S. ° -

(360, 1 L. Ed 2nd 889, #7 Sop C880»... 46,16 15

ee Atlantic & Gulf Stevedores, Inc. v. Ellermati Lines,

Ltd., 360 U.S. 255, a eo 82 Sup.

ATI cB cnsren tics hscintang ie ae 20,22

B & O Southwestem Railway Co. v. Carroll, 220 US.” —_

+ 491, 74 L, Ed. 566, 50 Sup. Ct. 182° ae 31

Bragg, et al v. Hughes, 53 S.W. 151 (Tex, Civ. a ie

| App. 1932), -no- writ hist. . a hei) «es tees line ae eae 24 “—

: Brown v.’Western R: Co., 338 U.S. 294, 94 L. Ed. 100, ¥

* PMS MR WO ca tcf tlic ddcenniedd, 16

Davis v. Weoheler, 263 US. 22, 68 L. Ba. 145, 7

44 Sup--Ct. 18 ........ BoB Ae dich ee adder cchedciboact 16,19° . ¢

Dice v. Akron, €'& Y. R. Co., 342 U.S. 359, 96 eer |

L, Ed. 398, 72 Sup: Ct. 812. icceensrnenenneeitnnns 16

| Ford v. Carpenter, 216 S.W. 2d 558 (Sup. Ct. os

of Tex. 1949) . » 25

Fortune v.. Swap’ Shop. jai

App. 1961) revd. on other erds., 365 S.W..2d_ |

151 (Sup. Oh at Da, Pee nce eae. aes 28

Ft. Worth & Denver R. Co. v. Britton, 310 S.W. 2d

654 (Tex. Civ. App. 1958) , writ. ref., WTA. ....>>.. cesseese ly 25

Gallick v. Baltimore & Ohio RR. Co., 372 US. 108, |

_9 L, Ed. 2d 618, 83 Sup. Ct. 659 iin ARETE SES pera 20

Gulf States’ Utilities v. Grubbs, 44 S.W. 24 21001 3 Tees

(Tex. Civ.’ App. 982), no writ hist. ....00....00:,.... es, _

‘Halliburton Oil Well. Cementing Co. v. Groves, 308

- §&W. 2d 919 (Tex. Civ. App. 1957), writ ref., n.r.e. -....... 27

Hill v. Leschber, 235 S.W. 2d 236 (Tex. .Civ. App.

‘ 1950), no writ hist. ....... Sinden peoeaibeconnaconongsbcdcnteinseocdiin 27

Index of Axithoritice— (Continued) _ a tii -

, fo age

” Kansas City R. Co. v. Flower (Pe. iv App. 1954), :

i | I A IU elas aass ah civapeg eu datoats ches openisn pone: “le

Kimble v. ‘Younger Bros., 283 S.W. 2d 254 (Tex. - A

im, -Civ—Aipp. 1955), writ ref, 0.5.0. 022.200... cgecccsegeectiee 28 *

~~“MeVey v. Phillips Petroleum Co., 228 F. 2d 53 ae

er | een ee! Sirus esiaee iene teers 20, 22

Morris v. Pennsylvania Ry., 187 Fed. 837 |

Ber S.-i an eee ae 20,22.

’ Panhandle Eastern Pipeline Cunae v. Calvert,

347 U.S. 157, 98 L. Ed. 583, 74 Sup. Ct. 396 ............ 2

‘Panhandle & Santa Fe Ry. Co: v..H. T. Arnold, 283

S.W. 2d 308 (Tex. Civ. App. 1955) oc... 15.

. Pruitt v. nparance Corp., 265 S.W. 2d 908

aay Civ. . 1954), writ. ref., mre. ................. siatajeses

Tennant y. Peoria & P.U.R. Co., 321 U.S. 29, 88

Le, Eds 520, 64 Supe Ct. 409 oe cccscsengcnnsenentseene 3

‘Texas & Pacific R. Co. v. Snider, 821 S.W. 2d 260 oe

(Sup. Ct. of Tex. I Rapes tiie btn eckadpe berg ne ae

41-B Texas Jurisprudence, p. 780, Form and ele hee

‘Sufficiency of Amawers 0.0.00... lec eadeateeneseeee 27

28 U.S.C. Section 1257 (3). ..ccccceiicecesesencnaetcitnaenee 2

| j

| ra In the 6

"Supreme Court of the United States |

1965

“Massounr-Kawsas-Texas RR. Co.,”

" Respondent. oe

PETITION FOR WRIT OF CERTIORARI

To the Court of Civil Appials for the 5th h Stapreme

ess Judicial District valid Texas

Petitioner, H. T. Shelton, prays that a Writ of Certiorari a

_ issue to review the Judgment of the’ Court of Civil Appeals

- for the Fifth Supreme. Judicial District of Texas entered.

in the- above er casé on May 115, 19664. 3

“CITATION. TO OPINIONS, BELOW ay?

"The opinion of the Court of Civil Appeals for the Fifth <

Supreme Judicial District of Texas is reported in 383 S.W. |

2d 842; and_is appended hereto. (Appendix A, p. 45) The Su-

- aie

: _preme Court of Texas wrote no opinion in refusing Petition- 3

ers Application for Writ of Error, and that Order is ap- -

? pended hereto. (Appendix A, p.’ my)

% ¢

ae GROUNDS OF JURISDICTION.

‘The Judgment of the District Court of Texas, Fifteenth

~. Judicial District, in “favor of: Petitioner for the sum of

$25,000.00, was entered on May 20; 1963. (Appendix A, of35)

+ On May 14, 1964, the Court of Civil Appeals reversed and.

“remanded that Judgment. (Appendix A, p. 57). The Order

denying Petitioner’s Motion for Rehearing by the Court of

Civil Appeals was entered on October 9, 1964, at which time .

the Court of Civil Appeals rendered. 4, further Opinion on

Rehearing. Petitioner’s Second Motion for Rehearing was

| denied by the Court of Civil Appeals on Movember 6, 1964,

- (Appendix A, p. '58) Petitioner’s Application for Writ of Error’ .

. to the Supreme Court of Texas, timely filed, was refused on.

January 27,°1965, no reversible error. (Appendix A; p. 70) The

Supreme Court of Texas entered an Order denying Petition-

er’s Motion for Rehearing ‘on his Application for Writ of

Error on March 10, 1965. (Appendix A, p. 71) The Court of

Civil Appeals thus became the highest Court in Texas in

which a decision could -be had. Panhandle Eastern Pipeline

Company uv. Calvert, 347 U.S. 157, 98 L. Ed. 583, 74 Sup. °

Ct. 396 (1954). ce cn

scl alineiaideioeiadionnien ns i

28 US.C.,: Sec 1257, Subsection 3, because Petitioner's -

_. cause of action arises under the Federal Employers Liability

\. Act, 35 Stat. 65, 45 U.S.C., Sections 51, et seq., and be-

‘cause a right and privilege is specially set up and. claimed

under this Act of Congress, and further because the Court

-.of Civil Appeals has decided substantive questions arising

under the, Federal Employers Liability Act not heretofore

determined by this Court, anc has decided them in a way

probably not ‘in accord with the applicable —- of this

Court. |

oe _ QUESTIONS PRESENTED |

Does’ not Arnalé.v.. Panhandle & Santa Fe Ry. Co., 1

L. Ed. 2d 889, 353 U.S. 360, 77 Sup. Ct. 840, deny the'Texas

Courts authority, in a Federal Employers Liability Act suit, .

where the jury returned a ‘negative answer to a general

_ Special Issue on which Petitioner had the burden of af-

| firmatively establishing that his employer failed to furnish

‘him.a reasonably safe’place to work, to hold that ‘such neg-

ativé answer is exhaustive and controlling, and therefore in

fatal conflict with another Special Issue on which Petitioner

" successfully met his burden of proof, the Jury’ having

‘specifically found, in answer to such issue, negligence on

the part of the railroad in permitting chatt, gravel, rocks,

mounds of dirt or debris to remain in the area of its switch-

ing yards where Potitionet alighted from a car, thus caus-

_ ing his injury.

_ aoe

° ‘ “.

_ Has Petitioner been deprived of substantive rights af-

forded him by Congress* under the Federal Employers

_ Liability Act by the Texas Courts in denying him a recovery

on the basis of local practice, contrary to the decision in

Arnold v. Panhandle & Santa Fe Ry. Co., I L. Ed. 2d 889,

(353 US. 360, 77 Sup. Ct. 840, after he had secured an af- |

‘firmative jury finding in his favor in response to a Special

Issue finding his employer negligent in permitting chatt,

gravel, rocks, mounds of dirt or debris to remain in an area.

of its.switching yards where Petitioner alighted from a car

causing his injuries, the jury failing to answer in Petitioner’s

favor the question of whether Respondent failed to furnish

wc ecraaaseas aia al oe lacie el

_ ‘Have the Texas Courts denied Petitioner’s established

substantive rights under the Federal Employers Liability .

Act by refusing to reconcile a negative answer to a general

Special Issue inquiring whether Respondent failed to furnish .

him a reasonably safe place to work with an affirmativé

" finding by the jury in answer to another Special Issue that:

Respondent was negligent in permitting chatt, gravel, rocks,

mounds of dirt or debris to remain in the specific area where

’ Petitioner. was injured as he alighted from a car, where such ~

answers could be reconciled-on several reasonable grounds

so as to avoid a holding that a fatal conflict existed in such

: w

MATERIAL FACTS »

Petitioner, H. T. isiton an employee of Respondent,

Missouri-Kansas-Texas Railway Company, brought suit

against it in the District Court of Grayson County, Texas,

15th. Judicial ‘District, for damages for personal injuries

_ Sustained while employed as a switchman in Respondent’s

Yards, injuring his back when he stepped on debris ac-*

. cumulated along the tracks in the area where he alighted

from a car. ‘This cause was tried to a jury on the 25th day

of February, 1963. On the basis of the jury’s answers in

response to 67 Special Issues, (Special Issues are used in’ ‘

Texas rather than a general verdict) , Judgment was entered.

for Petitioner on May 20, 1963 in the amount of TWENTY-

FIVE. THOUSAND DOLLARS ($25,000. 00) (Appendix

A, p. 35) , to which action Respondent. duly excepted and per-

fected his appeal to the Court of Civil Appeals for the Fifthi

Supreme Judicial District of Texas. a

Following perfection of an appeal by. Respondent, the

Court of Civil Appeals rendered a Judgment reversing and

remanding this case for-a new trial solely on the narrow

proposition that the jury’s answer iy response to Special

Issue No: 2, inquiring whether Respondent failed to furnish

Petitioner a reasonably safe place to work, and Special

Issue No. 9, inquiring whether | Petitioner permitted chatt, -

gravel, rocks, mounds of dirt or debris to remain in the area

where Plaintiff was injured. as he alighted from a car, were

fatally conflicting and mutually destructive of each other

_ 80 as to preclude a Judgment in Petitioner’s favor. (Appen-

dix A, p. 52)’ All other contentions of Respondent were re- —

EARS NAA BEMIS th

cd .

jected. The Court of Civil Appeals held that the opinion of

this Court in the case of Arnold v. Panhandle & Santa Fe Ry,

- Co., 355 U.S. 360, 77 Sup. Ct. 840, 1 L, Ed. 2d 889 controlled |

disposition of this case, stating:

“The Arnold Case is really authority foe holding that

the answers here are in confli ” (Appendix A, p. 53)

" Petitioner’s Motion. For Rehearing was overruled on October

9, 1964, and his Second Motion For Rehearing was ‘overruled |

on November 6, 1964. The Supreme Court of Texas refused

further review, and Petitioner now — for this Writ of —

Certiorari.

The jury, in fesponse to special issues submitted to thém, ;

convicted Respondent of negligence. in pertnitting chatt, ~

_~ gravel, rocks, mounds of dirt or debris to remain in the area :

. where he alighted from a car. These issues were:

“SPECIAL ISSUE NO. 8: 7

“Do you find from a preponderance of the evidence

that Defendant permitted either chatt, gravel, rocks,

mounds or dirt, or debris to remain in the area of the

hunip where Plaintiff alighted from: said’ caboose.

“AN SWER: “Yes.”

“SPECIAL ISSUE NO. or

_ “Do you find from a preponderance of the oidenne

- that such act in permitting either chatt, gravel, rocks,

mounds of dirt, or debris to remain in the area of the

hump where Plaintiff alighted from said caboose, if

you have so found in answer to the preceding Special

Issue, was negligence, as defined herein? ;

“ANSWER: “Yes.”

: T-

“SPECIAL ISSUE NO. 10: |

“Do you find from a preponderance of the evidence

that Plaintiff’s injuries, if any, resulted in whole or in

part from such negligence, if’ any, Oey have found in

answer to'the preceding Special Issue

“ANSWER: “Yes.” (Tr. 86)" (Appaidis k p. 36)

The jury did not find any act of negligence on the part of

Petitioner which contributed to cause his i injuries. The only

other Special Issue submitted and vital to the — now

raised read as. follows:

“SPECIAL ISSUE NO. 2:

“Do you find from a sesaieaies of the evidence |

that on the occasion in question Defendant failed ‘to

furnish Plaintiff a ced safe _ in which to

work?

“ANSWER: “Yes” or “No.” ‘ |

“ANSWER: “No.” -—-

“You are Sestenctad the Defendant was under a duty

to exercise ordinary care to furnish Plaintiff a reason-

ably safe place i in which to work, and this duty was a

continuing one even though the work ‘may have been

. fleeting or infrequent.

“You are further instructed that the duty to exercise

ordinary care to furnish a safe place to work does not

have reference only to ‘the physical condition of the

place itself but also has reference to the negligent acts,

if any, you . find of Defendant's employees .on the

‘occasion in question. :

“You are further instructed that this duty i is a duty

which becomes more imperative as the risk increases.”

-__(Tr. 84) (Appendix A, p. 36)...

PL ae when used herein, refers to the Transcript, wa mo fee"

when used herein, refers to the Statement of Fa which are two

o—_ documents comprising the Record under ‘1 ‘exas Appellate

ctice e

‘The j jury did not find Respendnit’s eiaiéie guilty of

‘negligence with reference to the movements of the train

from which Petitioner “alighted before he fell, nor with

reference to the movements of another train moving in the

opposite direction on another track which struck Petitioner

after he alighted, Petitioner testified that the aisles and

passageways in and around the railway tracks in Respond-

enit’s yard were not kept clean (S.F. 47-49), and that elec-

tric lantern batteries, rocks, and objects as big as his two ;

fists, bolts, chunks of wood, and pieces of brake, shoes were

all to be found in this area and that the crossing in ques-

tion was not kept free of debris; that on the occasion of

~ his accident he had stumbled over an.object (S.F. 262); -

that there were mounds of dirt appearing in the area in

question (S.F. 278), as well as dirt and “stuff” along the

track in the area in question as well as other rough terrain

(S.F.. 339, 340, 353). A witness Respondent offered testified

| -' that there was rubbish in. the yard and’ things in between

the tracks that made it dangerous for switchmen getting

on and off cars (S.F. 518), that electric lantern batteries

were located all over the yard between the tracks and in

between the aisles for long periods of time without any

effort to clean them up, and that these objects have a tenden-

cy to roll or give if one steps upon them (S.F. 874). Graphic

evidence of the portion of the railroad yard in question was

exhibited to the jury in the form of photographs by way of

Plaintiff's Exhibits 57 and 58, (S.F. 1307) and Defendant’s

' Exhibit (S.F. 1325). Petitioner testified he got off at the 7

- cleanest place (S.F. 307), but that the place where he got.

_ off was nevertheless not clean (S.F. 316). Another witness

ne R. McBee, statpd the grea in question

was a, “bad place”, and that, “chatt and stuff’, had been

hauled in to try to fill it up (S.F. 987). Another witness, _

Cc. L. Roland, testified that piles of dirt and chatt and.

gravel existed in the area (SF. 1225); that this condition

_ had existed for four, years prior.to the date in question

(S.F. 1225); that-unsafe footing was provided in this area

(GF. 1226), because of a mound of dirt in the area in i

| question (S.F. 1230). Witness A. M. Davis testified he him-

: ‘self had made complaints about the conditions in. Ray Yard

in the area of the Sst where Petitioner alighted. (S. F.

. 1255). Rat at

MANNEROOF RAISING FEDERAL QUESTIONS

IN STATE COURTS

‘Following the rendition of Judgment by the Court of —

Civil Appeals, Petitioner timely filed his Motion for Re-

hearing, a ai the ee Points of Error:

“POINT OF ERROR NO. 1

“The Court erred in holding the jury’s answer - of “No”

to Special Issue No. 2, inquiring whether Appellant failed

to furnish Appellee a reasonably safe place in which to

work, was equivalent and tantamount to a. finding that

Appellant did furnish Appellee a reasonably safe place i in

which | to work.

“10

“POINT OF ERROR NO.2 ~~ >

“The Court erred’ in holding that the answer of the

jury to Spécial Issue No. 9, convicting Defendant of negli- -

gence in permitting either chatt, gravel, rocks, mounds

_of dirt, or debris to remain in the area of the hump where

Appellee alighted from the caboose, based upon the find-

"ing of the jury in answer to the primary issue, Special

Issue No. 8, was in fatal and irreconcilable conflict ‘with

the answer of “No” to the jury of Special Issue No. 2

inquiring whether Appellant failed to furnish Appellee

a ee safe ne in which to — .

“POINT OF ERROR NO. 3°

“Ifethe answer of the jury to Special theses Nos. 8and -

_ 9 were in conflict to the answer of jury to Special Issue

No. 2, the Court nevertlieless erred in‘reversing this case,

and in failing to give effect to the specific finding of

negligence by the jury in answer to. Special Issues Nos.

8 and 9, because this Court cannot, under the guise of

State Procedure, defeat substantive rights granted Appel-

lee by Congress under the Federal Employers Liability

Act. ne . se

“POINT OF ERROR NO. 4

“The Court erred in failing to hintiguinhen uk recon-

- eile the jury’s finding in answer to Special Issues Nos. 8.

and 9, and No. 2, in that viewing all of ‘the evidence, ©

answers. of the jury to said issues were consistent and

should have been resolved that way.

: “POINT OF ERROR NO. 5

“The Court erred in reversing this caie and in failing

to give effect.to a finding of negligence based upon the

_jury’s answers -to Special Issues Nos. 8 and 9 which in-

quired about a specific ‘act of negligence and in holding

there was a conflict between the answers of the jury to

. such issues and Special Issue No. 2, because these specific

findings of negligence should prevail over a general find-

~ ing in answer to Special Issue No. 2.”

Following rendition of judgment overruling Potiticner’s

: Motion for Rehearing, the Court of Civil Appeals rendered

’ its Opinion on Motion for Rehearing, in which Justice Wil-

liams dissented (Appendix A, p. 58), and Petitioner filed his

_ Second ' Motion For Rehearing, urging the same Assign-

eae en oe fe ae s

3) _ “POINT OF ERROR NO. 6.

“The Court erred in holding that an irreconcilable con-

flict was created due to the fact that Appellee was able

to show negligence on the part of Appellant and his em-

" ployees in permitting debris to accumulate, but failed to

show that Appellant and his employees were negligent in

failing to furnish him’ a reasonably. safe place to work,

based upon the instruction — Sine Issue

No. 2.” |

After the Court of Civil Appeals overruled Petitioner's

Second Motion for Rehearing, Petitioner then applied for

\ .

4 Wit of mor to the Supreme Court of Tess, uring the

“POINTS OF ERROR

“FIRST POINT OF. ERROR: The Court of Civil ‘ia

peals erred in holding that the affirmative answer of the

jury to Special Issue No. 9 convicting Respondent of negli-

gence in permitting either chatt, gravel, rocks, mounds of

dirt, or debris to remdin in the area of the hump where

-Petitioner alighted from the caboose was in fatal and

irreconcilable conflict with the jury’s-answer of ‘No’ to

Special Issue No. 2, inquiring whether Respondent failed

to furnish Petitioner a reasonably safe place in which to

work. alt lil Salles

“SECOND POINT OF ERROR: The Court of Civil Ap-

peals erred iri holding the jury’s answer of ‘No’ to Special

Issue No. 2, inquiring whether Respondent failed to fur-

nish Petitioner a reasonably safe place in which to work,

was equivalent and tantamount to a finding that Respond-

ent did furnish Petitioner a ew safe eae! in which .

to. work..

“THIRD POINT OF ERROR: The Court of Civil Ap-

peals erred in reversing this case and in failing to give _

effect to specific findings of negligence evidenced by. the

answers to Special Issues Nos. 8, 9, and 10, because these

_ specific findings of negligence should prevail over a. gen- |

eral — in answer to Special Issue No. 2.

tesa 13

_ “FOURTH POINT. OF ERROR: The Court of Civil Ap-

peals erred in failing to harmonize. and reconcile the ...

jury’s findings in answer to Special Issues Nos. 8:and |

9, and Special’Issue No. 2, in that hearing all the evidence

the answers of the jury to said. Issues were consistent. and

‘should have been resolved that way.

“FIFTH POINT OF ERROR: The Court of Civil Ap-

-peals erred in reversing this case.based on the conflict -

in the answers to Special Issue No. 9 and Special: Issue, No.

_2, and in failing to give effect to the specific finding of

~ negligence i in response to Special Issue Nos. 8, 9,.and 10

‘because this defeats ‘substantive rights granted Petitioner

is. — under the Federal Employers Liability ‘Act.

“SIXTH POINT OF ERROR: The Court of Civil ie

peals erred in holding that an irreconcilable conflict was

created due to the fact ‘that Petitioner was able to show |

‘negligence on the pant of Respondent and its employees"

in permitting debris to accumulate, but failed to show

that Respondent and his employees were negligent in fail-

_ ing to furnish him a reasonably safe place in which to.

work, based upon the instruction accompanying Special”

Issue No. >”

The Supreme Court of Texas refused Petitioner's Appli-

cation for Writ of Error, no. reversible error (Appendix

A, p. 70) ; Petitioner filed a Motion for Rehearing which again

brought to the atterition of the Supreme Court’of Texas the

Points of Error set out above. The Supreme Court of Texas

overruled Petitioner’s Motion for Rehearing on his Appli-

| cation for Writ of -Error. (Appendix A, p. 71) -

REASONS FOR GRANTING THE WRIT.

A. The Writ Should Be ‘Sienna Because The Texas Court

-Has Utilized A Procedural Rule to Deny Petitioner’s

Recovery Under. The F ederal Employers Liability Act

: Because of An Erroneous Interpretation of Arnold v.

- Panhandle. & Santa Fe Railway Co., 1 L.Ed. 2d 889, .

353 US. 360, 77 Sup. Ct. 840.

The Court of Civil: Appetls reversed. the Zcidgment of tie -

Trial Court in favor of Petitioner solely on the basis that the .

jury’s answer of “No” ‘to: Special Issue No. 2,: inquiring if

Respondent failed to furnish Petitioner a reasonably ‘gafe-

place-to-work, fatally. conflicted with the jury’s answer of

“Yes” to Special Issue No. 9, inquiring whether the act of

_¢ Respondent in permitting chatt, gravel, rock, rfiounds of * . 2

'. dirt, or debris to remain in the area where -Petitioner was

injured while alighting was negligence, because this Court in

_ Arnold v. Panhandle & Santa Fe Ry. Co., ‘supra, supposedly

held that, “the unsafe-place-to-work finding was exhaustiye

. and all-encompassing. ” The Court of Civil Appeals reasoned

' “that if the unsafe-place-to-work finding in Arnold was ex-

_paustive and all-encompassing, [which incidentally this Hon-.

~*~ orable Court did not hold], the jury’s answer té Special Is-

sue No. 2 was therefore tantamount to a “safe-place-to-work =

finding”, concludip=, “The Amold- case is really authority for

holding that the. answers here are in conflict.” {Appendix

cai 53) he impact of the Arnold decision on this case is ap-'

parent; & careful examination of Arnold v. Panhandle & San-

ta Fe Ry. Co., supra, ig,vitally necessary because, with refer-

a ence to the jury’s findings, the instant case is precisely the es

_ converse of Arnold v. Panhandle, supra. In Arnold -v. Pan-

handle, supra, a jury acquitted the Rai

acts of negligence, but found that’ the Railroad failed to fur-

nish Arnold a reasonably safe place in which to work. Here,

the jury has acquitted the. Railroad’ of negligence in fail-

ing to furnish a reasonably safe place in which to work, which

is not tantamount to a, “‘safe-place-to-work finding”, as the -

“Court _ of Civil Appeals reasoned; howéver thé jury did

find that the Railroad was guilty of a specific act of negli-

| gence, i.e., permitting debris to remain in the particular area .

_ where Petitioner was injured. oaG

In spite of Arnold having shown himself entitled to re-

covery under the Féderal Employers Liability Act by secur-

. ing an affirmative jury finding that the railroad failed’ to

furnish him a safe place in which to work,. which act was

negligence causing his" injuries, the Texas Court of Civil

Appeals in’ Panhandle & Santa Fe Ry. Co. v. H. T. Arnold,

283 S.W. 2d 303 (Amarillo Civ. App. 1955), denied recovery,

holding that in view. of the jury’s acquittal of the railroad of

any ‘specific act of negligence, a_ conflict ‘in the findings

was present. The Texas Court of Civil Appeals, at 283 S.W.

2d 305, said: . ; oo

| “The law of this State is well established that the courts

‘must reconcile any apparent conflict in the j jury answers

if the same can be reasonably done in the light of the

facts of the particular case. general finding that

appellant failed to furnish appellee with a safe place to

‘work cannot, stand in the face of the specific findings

of the jury exonerating both appellant railway and Bill-

ings of any negligence proximately causing appellee’s-

injuries. Walker v. Houston Electric Co.,:Tex. Civ. App.

155 S.W. 2d 973, writ of error ref.; Aranda v. Texas &

_N.O. R. Co., Tex. Civ. App. 140'S.W. 2d 236; Sproles v.

Rosen, 126 Tex. 51, 84 S.W. 2d 1001;, El Paso Electric

Co. v. Hedrick, Tex. Com. App., 60 S.W. 2d 761; Harbin

v. City of Beaumont, supra.” |

This Honorable Court granted certiorari, and in Arnold v.

| Panhandle & Santa Fe RR. Co., 353 U.S. 360, 1 L. Ed. 2d

" 889, 77 Sup. Ct. 840, reversed and remanded the decision of

‘Davis v. Wechsler, 263 U.S. 22, 24, 68 L. Ed. 143, 145,

‘44 S. Ct.-13. See Dice v. Akron, C. & Y.R. Co., 342 US.

359, 96 L. Ed. 398, 72 S. Ct, 312; Brown v. Western R.

Co.-338 U.S. 294, 94 L. Ed. 100, 700 S. Ct. 105. The

judgment of the Court of Ci Appeals is reversed and

”

- It is obvious that the Court of Civil Appeals in the in-

starit case has made two erroneous inferences based upon

‘ the language of this Honorable Court set out above: First,

the Court of Civil. Appeals in its opinion erroneously stated

that the United States Supreme Court held that “the unsafe-

place-to-work finding was exhaustive and all-encompassing.”

Petitioner asserts-this Honorable Court merely stated that

the: specific acts of negligence themselves were not exhaus-

tive and all-encompassing, and that other specific acts of

negligence could reasonably .and conceivably have been in-

cluded ‘within the’ general. unsafe-place-to-work finding. This

Court did not expressly or impliedly hold that the reason-

. ably safe-place-to-work finding was exhaustive or all-encom-

passing. Second, it reasonably follows that the Court of Civil

Appeals here has erroneously misconstrued this Honorable ~

Court’s language in stating: “The Arnold case is really au-

thority for holding that the answers here are in conflict.”

The Arnold decision makes it unmistakably clear. that this

Court’s rationale and intention was to reconcile and harmo-

nize a jury verdict and to prevent the.existence of conflicting

- findings in order to‘effectuate the liberal policies underlying

administration of the Federal Employers Liability Act

through our Courts, whether State or Federal. This Honor-

able Court surely. did not intend, and had-no reason to-antici-

pate, that its language would be utilized to create a conflict .

in jury findings such as in the instant case,-so as to nullify a

railroad worker’s right to recovery clearly established by

means of an affirmative jury finding of 4 specific act of negli-

gence on the part of his employer. —

We submit that the employer in a Federal Employers Lia-

bility Act case can commit specific acts of negligence which —

‘are not encompassed within the general unsafe-place-to-work

concept. Ifthe Court of Civil Appeals be correct in its hold-

ing in this case, then this Court has in effect held that

an injured workman in an action brought under the Federal

Employers Liability Act against his employer will only be

" . entitled to submit and ask the jury the question: “Did the

employer fail to furnish him a reasonably safe place in which

to work?” Reasoning further, if the Court of Civil. Appeals

_be correct in its opinion, should a jury answer the safe-place-

to-work issue affirmatively, and answer the issues on specific

acts of negligence in the negative, then the workman would -

be entitled to recovery under the authority of Arnold, supra;

should the jury answer the general safe-place-to-work issue

negatively, then recovery would automatically be denied, ’

because this concept is exhaustive and all-encompassing.

Surely this unjust result and unduly restrictive interpreta-

~ tion is far too narrow and is violative of the liberal pur

intended by the Act, and not in harmony with this Court’s

_ intent and rationale in Arnold v. Panhandle & Santa Fe

Ry. Co., supra.

Associate Justice Claude Williams, in his dissent below,

recognizes that when correctly applied to the facts of the

case at bar, Arnold v. Panhandle, supra, compels the opposite = __

holding than that made by the majority of the Court of

Civil Appeals. (Appendix. A, p. 64) He correctly reasons that

Petitioner in this case has plainly and reasonably asserted

_ and established a Federal right by securing affirmative jury

findings that Respondent negligently permitted debris to

accumulate: in one particular area wore caused his. injuries,

which . findings, when standing ‘alone, entitle Petitioner’ to

recover under the Act.. When the proof reaches this point,

our United States Supreme Court has consistently held,

| “* * * the assertion of federal rights, when plainly. and

reasonably made, is not to be defeated under the name of

local practice,” Arnold v. Panhandle & Santa Fe Ry. Co.,

supra, and Davis v. Wechsler, supra; it is iniequitable to .

deny recovery simply because Petitioner did not discharge

his burden of proof on a separate theory of recovery. This |

failure to preponderate the evidence and resulting negative

jury answer did’ not affirmatively establish or — the

conclusion of “a safe-place-to-work”.

The Court of Civil Appeals has attempted to sidestep

this Court’s -heldings by erroneously maintaining that no

rules of local practice are involved herein, but only questions —

as to the substantive rights of the parties. ‘This position is

wholly untenable i in view of this Court’s approach in Arnold

v. Panhandle & Santa Fe, supra, decided upon the identical

type of ee

B. The - Writ Should Be Granted iheenese The Texas

Court Has Deniéd Petitioner’s Right to Recovery Un-

: der The Federal Employers Liability Act By Refusing

Fo Reconcile The Jury Verdict On Any Qne Of Sev-

eral Reasonable Grounds, Having The Duty To Dp

‘So ‘Under Both ‘State And Federal Law.

It is. apparent upon reading -Petitioner’s POINTS OF

ERROR, utilized below pursuant to Texas appellate prac-

es it 9

es =

; 2

’

tice to preserve error, that: Petitioner has consistently and _

| tenaciously pointed out to the Texas.Courts several reason-

able and cogent grounds upon which the jury’s verdict here

could have been harmonized and reconciled. This was the

Court’s duty under Texas practice. This Court so held in

_ Gallick v. Baltimore & Ohio Railroad Company, 372 US.

108, 9 L. Ed. 2d 618, 83 Sup. Ct. 659; Atlantic & Gulf Steve-

dores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364,7 L.Ed. .

" 2d. 798, 807, 82 S. Ct. 1134; Arnold v. Panhandle & SF.

R. Co., 353 U.S. 360, 1 L. Ed. 2d 889, 77 S. Ct., 840; ‘also see

McVey uv. Phillips Petroleum Co., 228 F. 2d 53 (C.A. 5th

Cir); Morris v. Pennsylvania Ry., 187 Fed. 837 (C.A. 2d

Cir.). The Texas Courts below have declined to so recon-

cile and harmonize the jury verdict in the instant case,

which in itself amounts te a denial of Petitioner’s substan-

tive rights under the Federal Employers Liability Act be-

’ tause-such refusal in effect obliterates positive affirmative

jury findings that Respondent’s specific act of negligence

caused Petitioner’s injuries, and therefore eradicates federal

rights ‘plainly and reasonably established.

1. Effect of The Gallick Case’

In Gallick v. Baltimore & Ohio Railroad Company, 372

U.S. 108, 9 L. Ed. 2d. 618, 83 Sup. Ct. 659, a railroad em- .

; ployee brought suit against his employer under the Federal

Employers Liability Act in the Ohio State Courts, alleging i in-

. juries sustained as a result of being bitten by an insect while

‘working on the railroad premises. Under the Ohio state prac-

tice, rather than submitting the case upon a general verdict,

. the Court submitted twenty theese numbered Interrogatories

"tothe jury, analogous ta Special Issues in Texas. In answer

to these Interrogatories, the jury found: (1) Petitioner

was bitten by an insect; (2) the insect bite caused illness or

disease; (3) a stagnant pool attracted such insects and was

responsible for the insect bite injuries to Petitioner;

(4) Respondent knew that the a ulation of the pool of

water would attract bugs to the area; and (5) there was

-@ proximate causal relationship between the stagnant pool,

the insect. bite, and the foreman’s injuries, which findings:

standing alone, clearly and plainly would have entitled the

employee to redress under the Act. ‘However, the jury also -

found there was no reason for the railroad to anticipate that

maintaining the stagnant. pool would or | might probably-re-

. sult in a mishap or injury, The Ohio Common Pleas Court

entered Judgment awarding damages to the employee, but

the Ohio Court of Appeals reversed on the basis that there

was insufficient evidence to warrant the jury’s conclusion

that the railroad’s actions caused the employee’s injuries.

Certiorari was granted, and the Respondent railroad argued

before this Court that because the j jury had answered, “No”,

‘to an interrogatory inquiring if there was any reason for the

“railroad to’ anticipate that maintenance of the stagnant in-

fested pool would probably result in a mishap or injury,

and had then answered, “Yes”, to an interrogatory i inquiring

- whether there existed a proximate causal. relationship be-

| tween the stagnant water, the insect bite, and the employee’s_ .

injuries, a fatal inconsistency and conflict existed among the

onda findings which cancelled each other and necessitated a

new trial, arguing that one amounted to a. finding. of fore-

seeability and the other interrogatory amounted to a finding

of no foreseeability. In answer to these contentions, this

Honorable Court, at 9 L. Ed. 2d 627, held:

“Tn the first place, the jury might not hee equated a

foreseeable insect bite with a mishap or injury. The

trial judge more than once in his instructions separated

an ‘insect bite’ from ‘injury’, ‘infection’, ‘illness’ or

‘disease’. The answer to question 20 thus ’ might mean. -

simply that while an insect bite was foreseeable, there

was no reason to anticipate a ‘mishap’ or ‘injury’ from -

such a bite * * * It is widely held that for a defendant

to be liable for consequential damages need not foresee

- the particular consequences a his — a *"-

(Emphasis ours)

“But it is the duty of on courts to attempt to harmo-

nize the answers, if it is possible under a fair reading

-- of them: ‘Where there is a view of the case it makes

the jury’s answers to special interrogatories consistent,

they must be resolved that way’. Atlantic & Gulf Steve-

dores, Inc. v. Ellerman Lines, Ltd. 369 U.S. 355, 364,

7 L. Ed. 2d 798, 807, 82 S. Ct. 1134. We therefore must

attempt to reconcile the jury’s findings, by exegesis if .

necessary, as in Arnold v. Panhandle & S.F. R. Co., 353

~ U.S. 360, 1 L. Ed. 2d 889, 77 S. Ct., 840; MeVey v.

Phillips Petroleum Co., 298 F. 2d 53 (C.A. 5th Cir.) ;

Morris v. Pennsylvania Ry., 187 Fed. 837 (C.A. 2nd

Gir.) collecting’ authorities, before we are free to dis-

segnnd tie Sary's-specied verdes and remand the cate

for a new trial.”

“We do not believe that the conclusion of fatal i imcon-.

sistency is compelled by these findings * 73" 2a

answers, to these two interrogatories are therefore not

controlling for Federal Employers Liability Act pur- .

poses.” (Emphasis bias |

. B

This Court, in Gallick, supra, logically and soundly. rea-

_ soned. what the jury might or might not have thought, and

‘what the answers to the interrogatories might or might not

have meant, in an effort to reconcile: that-jury verdict. This

decision, in accord with earlier Texas cases cited, clearly indi-

cates the Texas “Court’s duty to reconcile and harmonize

: a jury verdict such as this one, and Gallick further demon-

strates that this Court will not allow positive affirmative

findings of negligence and causation entitling a railroad em-

‘ployee to recovery under the Act to be abrogated) in‘ the

absence of unresolvably compelling reasons. The Texas

Court failed to follow the mandate of this Court in Gallick, |

supra, which quoted the following language from Tennant ov.

Peoria & P.U.R. Co., 321 USS. 29, oS 1h. Ea. 520, 64 Sup.

Ct. 409: Per,

“It is a the function of ‘a court to search the record

for conflicting circumstantial evidence in order to take

the: case away from the jury on a. theory. that the proof

gives equal support to inconsistent and uncertain in-

ferences. The focal point of judicial review is the reason-

ableness of the particular inference or conclusion drawn

“, by the jury.”

_ The principle just set out above applits with equal force to

jury findings and the conclusions to be ‘drawn therefrom by

our Courts, and therefore the Court of Civil Appeals was

not warranted in searching the instruction accompanying .

Special Issue No, 2 and. drawing inferences therefrom as to

what the Jury might or must have decided in support of the

~ County Feevioas: conctmsion: thas-9 cuitct. ania. (Ap=

pendix A, p. 61).

. Under the Texas decisions, even in the absence of the .

‘added responsibility of effectuating the intents and pur-

_ poses of Congress under the Federal Employers Liability

Act, our State Courts are always under a duty to construe. -

verdicts, if possible, as not being irreconcilably conflicting;

when the findings admit of more than one reasonable con- |

struction, our Courts are under a duty to apply the con-

struction under which there is no conflict, Jury findings are

. not mutually destructive if there is any reasonable explana-

tion of the apparent conflict. Bragg, et al v. Hughes, 53 S.W.

151 (Texas Civ. App. 1932), no writ history; Ford: v. Car-

penter, 216 S.W. 2d 558 (Sup. Ct. of Tex. 1949); Texas &

Pacific R. Co. v. Snider, 321 S.W. 2d 280 (Sup. Ct. of Tex-

as 1959); Ft. Worth & Denver R. Co. v. Britton, 310 S.W.

2d 654 (Tex. Civ. App. 1958), writ refused nr.e.. Our Texas

- Courts are under the further duty of assuming at least’ the

' ordinary intelligence of jurors, and that they never intend

their specific findings should be destroyed by general find-

ings seemingly in conflict therewith, and that such jurors

do not intend to return conflicting answers. Pruitt v. Gen-

eral Insurance Corp., 265 S.W. 2d 908 (Tex. Civ. App. 1954);

writ refused n.r.e.; Kansas City R. Co. v. Flowers. (Tex. Civ.

App. 1964), writ: refused mre.

In spite of these Texas authorities, ‘and in spite of the

import of the Gallick case, supra, the Court of Civil Appeals

has denied Petitioner his right of recovery under the Federal

Employers Liability Act by refusing to reconcile this jury's -

25 ‘

verdict on-any of the grounds which we urge this Court to

2. Specific Findings Control General Findings

It is apparent that Special Issue No. 2 was a general in-

quiry, that is, whether in general Respondent failed to —

. furnish Petitioner a reasonably safe place in which to work;

likewise, the Jury’s :answer thereto constitutes a general

finding. Special Issue No. 9, and its corollary issues, in-

quired as. to a specific act of negligence, that is, whether

‘Respondent was negligent in permitting debris to remain in

the specific area where Petitioner was injured; likewise, the

jury’s answer thereto constitutes a specific finding. The

| prevailing Texas Procedural Rule, and that followed long

before Arnold v. Panhandle, supra, is that a Court, in order

to avoid finding a conflict between jury findings should give

_ controlling effect to specific findings over general findings.

Ft. Worth & Denver Ry. Co. v. Britton, 310 S.W. 2d 654, .

(Tex. Civ. App. 1958), writ refused n.r.e.; Harbin v. City of —

Beaumont, 146.S.W. 2d 297 (Tex. Civ. App. 1940), no writ

hist.;. Bragg, et al v. Hughes, 53 S.W. 2d 151 (Tex. Civ.

App. 1932), no writ hist.; Ford v. Carpenter, 216 S.W. 2d

558 (Sup. Ct. of Tex. 1949); Panhanille & Santa Fe R. Co. .

- v. Arnold, 283 S.W. 2d. 303, rev. 353 U.S. 360, 1 L. Ed. 889,

-. 77 Sup. Ct. 840. Associate Justice .Claude Williams,

) ‘in his dissent, recognized that the apparent conflict present

in this case could be readily and easily disposed of by ap-

‘plication of this. well established Texas procedural rule. (Ap-

pendix A, p. 67) As previously discussed, although this ‘Court

in Arnold v: Panhandle, supra, held that the application of

7 é

HS OR

_ the-rule ‘ia ons ove, to the effect that Sailihee findings |

: control general findings, . ‘may not be utilized: ‘so as to create

a conflict in a jury verdict in an action brought under the , .

Federal Employers’ Liability Act, thereby nullifying other °°

positive findings and denying an employee federal rights

made and asserted, that decision certainly does not compel

- @ State Court to refrain from utilizing such rule in order

. to prevent such a conflict and to reconcile and harmonize

“@ jury. verdict. There is absolutely no good and sufficient

reason for the Court of Civil Appeals to. refuse to apply this

_ applicable ‘rule of law so as to grant Petitioner his sub-

* gtantive Federal ‘rights cléarly and plainly asserted without

_ resort to further, reasoning or analysis of any sort. The

-. Court pf Civil Appeals has refused to reconcile this jury

~ verdict by reasonable application of this rule, denying Peti-

_tioner his proven right to-.recovery under the Federal Em-

ployers Liability Act. _

ony

“3. Effect of Negative — to Negatively Submitted

Issue ia

Under snilijilile Texas decisions, the techie) foim of

. Rpeciet Issue No. 2, and the effect of the jury’s. negative —

‘answer thereto; is of vital importance in this case.. This —_

issue was: submitted to the jury in a negative form, that i is, |

: “Did Defendant fail to furnish a reasonably safe place in '

- which to work?” When this negative form of submission is

used, as in the instant case, a simple answer of “No” thereto

“simply indicates a. failure ‘on the part of the party having

the burden of proof to preponderate the evidence’ or to

discharge his burden of, proof upon that issue, undet Texas

law. By sae oubmnission® Petitioner | means framing a

question or issue so as to inquire if one “failed” to perform

an act or “did not” perform an. act; both phrases are

synonymous, and both amount to a negative submission.

There might be a“distinction here had the jury been re-.

q Wired by the Court to make positive findings either: si

* such as, “Answer they did fail, or, they did not fail,”

had some similarly revealing response been required ee

_ given by the jury. The jury simply answered Special issue

No. 2, “No”. As a matter of law, under the following .Texas

~ authorities, such a simple answer of, “No”, given in answer

to Special Issue No, 2, cannot be said to be equivalent to

a converse affirmative finding against Petitioner, that is,

Respondent did furnish him a reasonably safe place | in

which to work, or that its agents and employees used

ordinary care. Hill v. Leschber, 235 S.W. 2d 236 (Texas

. Ciy. App. 1950); no writ history; Gulf State Utilities v.

Grubbs, 44 -S.W. 2d 1001 (Tex. Civ. App. 1932), no “writ

history; Halliburton Oil Well Cementing Co. v. Groves,'308

'S.W. 2d 919 (Tex. Civ. App. 1957), writ refused, n.r.e.. This

rule of law, which can be confusing, is most clearly illus-

_ trated in 41-B Texas Jurisprudence, p. . 780, Form, and Suf-

‘ficiency.of Answers:

“Thus where the jury are eine’ “Do you find a a

preponderance of the evidence that this condition did

‘not exist etc., Answer ‘yes’ or ‘no,’” the issue as so

framed is calculated to: confuse; the answer “no” does ~

not indicate that the jury affirmatively find that: the

condition existed, but merely that .the party having

the burden of proof did not establish the nonexistence

of the condition. A better practice is for the court, in the |

main charge, to instruct the jury to give such answers

‘ as “This condition did not exist,” or “This condition

did-exist.”

Soe a aa

«in automobile accident cases where there is an affirmative

jury finding as to speed, and a negative jury finding in

response to an issue inquiring if a party failed to keep his

automobile under proper control, a general negative sub:

mission. This application is best illustrated in cases such as

Fortune v. Swap Shop, 352 S.W. 2d 148 (Tex. Civ. App.

1961), reversed on other grounds, 365 S.W. 2d 151 (Sup. ’

Ct. of Tex. 1963), where the Court held:

“Trreconcilable conflict between affirmative oni

‘as to speed, and a negative finding on.the issue of __

_ .- failure of decedent to keep his automobile under proper .

control is asserted. It is held there is no irreconcilable

conflict.”

Another application of this principle is found in Kimble v.

-Younger Bros., 283 S.W. 2d 254 (Tex. Civ. App. 1955),

writ ref. n.r.e., where the Court statéd:

“Such contentions made by appellant are not the law

in ‘Texas. On the other hand, it has been clearly and

consistently held that a failure to find that there has

been improper control of a vehicle does not conflict with,

nor override, a specific finding of some act of omission

or commission which might, in the broad sense, be con- |

‘sidered to constitute one of the elements of proper |

control of a vehicle.” -

What is the effect and impact of this rile upon this case?

It prevents the existence of a conflict between the findings

of the jury given in response to Special Issue No. 2 and

those given in response to Special Issues Nos. 8, 9, and 10,

| 29 oe

because Petitioner has simply failed to discharge his burden

of proof and to preponderate the evidence in one instance,

but has secured affirmative jury findings as to a specific act

of negligence in another instance. There is no fatal: conflict

in these findings; there is no, “safe-place-to-work finding”.

(Appendix A, p. 52) Before one can correctly state that Re-

spondent affirmatively furnished Petitioner a reasonably safe

place in which to work there: must be ar affirmative. jury .

finding to that effect; the simple answer of “No” will not

furnish that affirmative finding, regardless of How it may

appear at first’ blush, because it does not reflect a unanimous

vote of twelve jurors to establish that fact.

‘The Court of Civil Appeals has thus refused to accept

this second reasonable basis upon which tc reconcile any

conflicting jury. findings, denying Petitioner his proven right

to recovery under the Federal Employers Liability Act.

4. Reasonable Explanation of The Jury Verdict

Although, as previously pointed out, the Jury’s answer

of, “No”, in response to Special Issue No. 2 does not amount

to an affirmative finding against Petitioner that Respondent

did furnish him a reasonably safe place in which to work, 7

or that Respondent’s employees did use ordinary care, even

if one were to assume arguendo that Respondent did furnish

Petitioner a reasonably safe place in which to work, there

would be no irreconcilable conflict between the findings in

response to these issues. The inquiry with respect to furnish-

‘ing a reasonably safe place in which to work could very

reasonably have been answered by the Jury based upon

testimony and evidence covering the condition of the entire

Ray Yard in Denison, Texas, an area of a considerable

number of acres, because this issue was not limited nor

localized to any particular area. By way of contrast how-

ever, Special Issue No. 9 inquired of the Jury whether Re-

_ spondent permitted debris to accumulate, “in the area of the

“hump”, where Petitioner alighted from the railroad car.

and was injuted. Thus, Special Issue No. 9 had reference

only to that one particular area where Petitioner was in-

; jured, which is only a small fractional part of the entire

railroad yard. The Jury could easily have believed that the «

railroad yard in general constituted a “reasonably safe place

in which ‘to work,” but that Respondent was negligent in

permitting foreign substances to remain in the area at the

« hump”.

The J ury had evidence with anaes to the yard generally

and heard evidence also with respect to the specific area

of the “hump”; Petitioner testified that although he got

off at the cleanest place in the yard, this particular area

was not free of debris (S.F. 307, 316); that the aisles and

passageways in and around the tracks of the railroad yard.

__ in general were not kept clean (S.F. 47-49); and that there

were rocks and batteries in that general area (S.F. 433-434). _

Numerous exhibits were introduced depicting large portions «

are areas of the railroad yard (S.F. 278, 353, 1307, 1325).

One of Respondent’s own witnesses testified to rubbish and

things in between the tracks in the yard generally which

made it dangerous in his opinion for switchmen getting on

and off cars in the railroad yard generally (S.F. 518); that

electric lantern batteries were located between the tracks

and in between the aisles all over the railroad yard (S.F.

874). Another witness, C. L. Roland ‘testified that the condi-

tions in general in the railroad yard in Denison, Texas, had

brought about a threat to strike (S.F. 1228). Another wit-

ness, A. M. Davis, testified that he himself had complained

_about.conditions in the yard generally, as well as the parti-

cular area where Petitioner was injured (S.F. 1255).

One would further have to assume that“ the answer to

Special Issue No. 2 not only amounts to an affirmative

finding that Respondent furnished Petitioner ‘a reasonably

safe place in*which to work, but also that such. affirmative

finding further means that Respondent furnished Petitioner

an absolutely safe place in which to work as to the entire

railroad yard i in order for a conflict to be produced. Of course

the proper concept contemplated by the Federal Employers

Liability Act, Title 45 U.S.C. Sec. 51, is that of a reasonably

safe place in which to work, not an absolutely safe ‘place in

which to work. B & O Southwestern Railway Co. v. ore '

280 U.S. 491, 74 L. Ed. 566, 50 Sup. Ct. 182.

The Court of Civil Appeals also based its opinion, parti-.

ally at least, upon the instruction accompanying Special

Issue No. 2, wherein the Jury, was instructed that the

reasonably safe place to work concept had reference not

_ only to the physical condition of the premises themselves,

- but also the negligent acts of fellow employees. (Appendix

A, p. 61) Under the authorities previously cited, the Jury’s

answer of, “No”, to Special Issue No. 2 cannot be converted

into a converse affirmative finding that Respondent’s em-

ployees used ordinary care. Therefore the jury could easily

have answered Special Issue No. 2 on the basis that Re-

spondent’s employees did not by their own negligent acts

——

32”

convert the railroad yard. into an unsafe place to work, and

may not even have considered the physical condition of the

premises, which would have been entirely permissible under

_ the instruction given. Since a railroad may furnish his em-

-ployees an unsafe place to work not only by its maintenance

of the physical condition of the premises itself, but also by

the negligent acts of its employees, this is a plausible ex-

planation of what the jury might have been . thinking in

answering Special Issue No. 2, “No”. This explanation would

be far more plausible than that adopted by the Court of

Civil Appeals in view of the fact that the jury exonerated

Respondent’s employees of any act of negligence relating

to the signals given and movements of the trains in ques-

tion in response to the numerous other Special Issues sub-

mitted by Petitioner in this case.

It is obvious thet the jury verdict in thia case could have

‘been reasonably reconciled so as to avoid any conflict in -

findings, purely upon a reasonable explanation of what the

jury reasonably could have considered in answering these

- Issues, that is, the jury might reasonably have answered

Special Issue No; 2, inquiring if Respondent failed to furnish

Petitioner a reasonably safe’place in which to work, which ©

issue was unlimited as to any one particular area or locale,

- on the basis of the condition of the -entire railroad yard .

consisting of a number of acres, and then answered Special

Issue No. 9 on the basis of one specific and particular area

of the entire railroad yard. Presuming the ordinary intel-

: ligence and honesty of these twelve jurors, and presuming

further that they did not intend their answers to be con-

<g>

flicting, this explanation furnishes a reasonable basis to

reconcile and harmonize this jury verdict. |

The Court of Civil Appeals refused to reconcile and har-

monize the jury verdict on the'basis of this plausible explana- _

tion, and has therefore denied Petitioner his established

_ Tight to recovery ‘under the Federal Employers Liability Act.

| CONCLUSION

The Judgment and Opinion of the Court.of Civil Appeals

_ deprives Petitioner his established right of recovery under

the Federal Employers Liability Act, is based upon an er-

roneous interpretation of prior decisions of this Honorable .

Court, and demonstrates a refusel to reconcile and harmo-

nize a jury verdict on several reasonable grounds, in the

face of the duty placed upon it to do so by prior decisions

of Texas Courts and this Honorable Court in an effort to

effectuate the intents and purposes of the Federal Employ-

ers Liability Act. For these reasons and those previously

advanced, and in view of the important substantive ques-

tions presented, this Petition for Writ of Certiorari should.

be granted. .

PRAYER

WHEREFORE, Petitioner prays that a Writ of Certiorari

be granted in order for this Court to review the Record,

Opinion and Final Judgment of the Court of Civil Appeals

for the Fifth Supreme Judicial District at Dallas, Texas,

and on final hearing, this case be remanded to such Court

instructing it to render Judgment affirming the Judgment

of the Trial Court, with all costs taxed against Respondent,

_ and Petitioner further prays for such other and. further

relief, Seneel cast teaels ee: sad 4 easily, © whieh

he may be justly entitled. ‘

: Respectfully submitted,

' - CHARLES GULLETT,

‘ Citizens National Bank . Bldg. ™

Denison, Texas,

Rosert Doss, |

Citizens. National Bank Bldg. Berek,

Denison, Texas,

BAKER, JORDAN, SHAW &

FOREMAN,

1610 Tower Petroleum Bldg. ™

Attorneys for Petitioner.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the fore-

going Petition for Writ of Certiorari to the Court of Civil

Appeals for the Fifth Supreme Judicial District of Texas

has been furnished to Messrs. Wm. A. Thie, Katy Bldg.,

701 Commerce, Dallas, Texas, and Ralph Elliott, Sherman

Savings & Loan Bldg., Sherman, Texas, Attorneys for Re-

_spondent, by placing same in the United States Mail, post-

age prepaid, properly addressed, certi mail, return receipt. .

requested on this the =

Let Uy

A Serene COPE RET Eee ee, See eee

RUSSELL M. BAKER —

‘APPENDIX A | |

I. Opinions, Judgments, ond Orders of Courts below:

A. Judgment of the District Court of Grayson County:

| No. 68,484

H. T. SHELTON

Missouri-KANSAS-TEXAS RAILROAD CoMPANY

IN THE DISTRICT COURT OF

GRAYSON COUNTY, TEXAS

15TH JUDICIAL DISTRICT

On the 25th day of February, 1963, the above entitled

and numbered cause having come en to be heard, appeared’ '

‘the Plaintiff in person and by his attorneys, and the Defend-

ant, MISSOURI-KANSAS-TEXAS RAILROAD COM-

PANY, appearing threugh its attorney, and all parties an-

nounced ready for trisl. Thereupon came a jury of twelve

good and lawful men and women of Grayson County, Texas,

_ composed of H. K. Kirby and eleven others, who being duly

sworn and empanelled, and who, having heard the pleadings, _

evidence, and argument of Counsel, retired to consider their —

verdict, and who’ afterward returned into open court, on

. the 9th day of March, 1963, their verdict in response to

Special Issues submitted to them by the court, which

verdict having duly been considered by the court was in all ©

things approved and ordered filed as the verdict in said

36 ‘

cause. Said ‘verdict is in words and figures substantially as

" follows: ae oct

SPECIAL ISSUE NO. 1:

“Do you find from a preponderance of the evidence

that on or about the 22nd day of April, 1962, andon

the occasion in question, H. T. Shelton sustained an

injury (as defined herein)? |

“ANSWER: “Yes.” | a Fe

. SPECIAL ISSUE NO.2; \

’ “Do you find from a preponderance of the e lege |

that on the occasion in question defendant fai

furnish -plaintiff a —— safe place in which rs

work?

“ANSWER: “No.” .

SPECIAL ISSUE NO. 5:

- “Do you find from a preponderance of the evidence

that the fireman in charge of defendant’s eastbound

_ engine, on the north running track failed to keep a

proper lookout (as defined herein)?

-, “ANSWER: “Yes.”

SPECIAL ISSUE NO. 6:

“Do you find from a preponderance of the evidence

that such failure, if any, you have found in answer to

the preceding special issue was er as defined

herein?

“ANSWER: “No.”

SPECIAL ISSUE NO. 8:

“Do you find from a preponderance of the evidence

that Defendant ee either chatt, gravel, ‘one

mounds of dirt, or debris to remain in the area of the -

hump where Plaintiff alighted from said caboose.

“ANSWER: “Yes.”

‘SPECIAL ISSUE NO. 9:

“Do you: find from a preponderance of the evidence

that such act in permitting either chatt, gravel, rocks,

mounds of dirt, or debris to remain in the area of the’

hump where Plaintiff alighted from said caboose, if you .

have so found in answer to the preceding special issue,

was soniye as a: herein? | =

“AN paueast

SPECIAL ISSUE NO. 10:

“Do you find from a preponderance ot the evidence

that plaintiff’s injuries, if any, resulted in whole or in

part from such negligence, if any, you have found in

answer to the oe special issue?

“ANSWER: “Yes,” — ano

‘SPECIAL ISSUE.NO. ‘11:

“Do you find from a prepondérance of the evidence

that the failure of defendant railroad company to require

the train crew to place the standard caboose at the rear

end of the train A aaa as defined herein?

“ANSWER: “N

SPECIAL ISSUE NO. 12A

-“Do you find from a preponderance of the evidence

that on the occasion in qyestion Plaintiff was struck by

Defendant’s eastbound engine moving eastward 0 on the

- North running —

“ANSWER: “N

erdem... te

pee ISSUE NO. 2i:

_ SPECIAL ISSUE NO. 115:

“Do you find from a preponderance of the evidence

that the engine crew on defendant’s eastbound engine

on the north running track moved said engine eastward

at’a time when plaintiff. was in the act of —"

between the tracks? =

- “ANSWER: “Yes.”

: SPECIAL ISSUE NO. 16:

“Do you. find from a preponderance of the evidence

that the act of the’ ‘engine crew on defendant’s

bound engine, moving. ‘said engine eastward at a yo

__ when plaintiff was in the act of alighting between the

tracks, if you have so found, in answer to the preceding

; special i issue was ss as defined peretai?

“AN SWER: “N

__ SPECIAL ISSUE NO, 18: | |

Do you find ‘from a preponderance of the evidence

that on the. occasion in question, defendant failed to

provide. adequate lighting in the area where plaintiff —

was. injured?

’ “ANSWER: “No.”

“Do you find from a preponderance of the evidence

| that defendant on the occasion in question was using a

caboose with bay windows extending outward from the —

side of the caboose so far as to make it dangerous for

a man to be working between two sets of tracks when

-said caboose » passed another train of cars on an adjoin- —

ing track? .

“ANSWER: “No.”.

exe *

_ SPECIAL ISSUE NO. 24:

: “Do you find from a preponderance of evidence that.

. on the occasion in question defendant permitted the

doors of said caboose with bay windows to be locked

‘go that plaintiff ais not open same? «

. “ANSWER: ‘

SPECIAL. ini NO: 25: |

“Do you find from a preponderance of the evidence

that the act of defendant in permitting the doors of said

caboose to be locked if you have so found, in answer to

the preceens special issue .was negmpance, as defined

_ herein? :

“ANSWER: “No.”

‘-§PECIAL ISSUE NO. 27:

“Do you find from a preponderance of the evidence

that the engine crew of defendant’s eastbound engine,

on the north running: track failed to give any signal of

ee ee

“ANSWER: “No.”

SPECIAL ISSUE NO. 30:

. “Do you find from a preponderance of the evidence

_ that at the time the plaintiff.H. T. Shelton was alight-

ing from the caboose oh which he was riding, the train

ee ene ee eer eee ee ee

motion?

“ANSWER: “Yes.”

SPECIAL ISSUE NO. 31:

_ “Do you find from a preponderance of the evidence

that the act of the plaintiff H. T. Shelton in alighting

from the caboose on which he was riding, between the

tracks upon which his train was, proceeding and -one

40 e

| upon which there was a train movement in the opposite

direction, if you have so found, was negligence, as that

term has been defined to you? :

“ANSWER: “No.”

SPECIAL ISSUE NO. 32:

“Do you find from a preponderance of the etienes

that such negligence, if any you have so found, was a

proximate cause, as defined herein, of the injury, if any, |

—— ee

occasion in question:

“ANSWER: “No.”

_ - SPECIAL ISSUE NO. 34:

Na ats Mia ies aaa eitiliaitin ol he eitianin

that on the occasion in question plaintiff alighted from

the moving caboose without guarding against equip-

ment moving on other tracks, if it was, so as to place

himselt in » position of close. clearance? |

“ANSWER: “Yes.”

SPECIAL ‘ISSUE NO. 35:

“Do you find from a preponderance of the evidence

that such conduct, if any you have found in answer to

SPECIAL ISSUE NO. 36: .

“Do you find from a preponderance of the evidence

. that such negligence, if any you have so found, was a

atoms ser og cape ~ a mamma arian

been sustained by the plaintiff?

“ANSWER: “No.”

- SPECIAL ISSUE NO. 38:

“Do you:find from a preponderance of the ities

that at the.time and on the occasion in question plaintiff

H. T. Shelton failed to keep.a proper lookout (as that

term has been defined to you) for his own safety?

“ANSWER: “No.” .

SPECIAL ISSUE NO. 41:

| a you find from a preponderance of the evidence

that plaintiff H. T. Shelton, at the time and on the

occasion in quéstion alighted from the caboose upon

which he was then riding without guarding against the ~

projecting window of the bay window caboose to his

rear? | rs |

“ANSWER: “Yes.”

SPECIAL ISSUE NO. 42:

“Do you find from a preponderance of the evidence

that such action, if any,.was —* as that term

has been defined to yqu?

_ “ANSWER: “No.”

SPECIAL ISSUE NO. 45:

“Do you find from a preponderance of the evidence

that at the time and on the occasion in question-plain-

tiff voluntarily, by his own election, selected the right

hand side of his caboose instead of the left-hand side,

in the direction the movement was then proceeding, to

alight from said —

“ANSWER: “Yes

- SPECIAL ISSUE NO. 46:

- “Do you find from a preponderance of the evidence

that such election, -if any, was en 2 as that term

has been defined to a

“ANSWER: “N

son8 42

SPECIAL ISSUE NO. 49:

“Do you find from a preponderance of the evidence

that on the occasion in question plaintiff alighted from

the moving caboose without _— against unsafe

footing, if it was?

“ANSWER: “No.”

SPECIAL ISSUE NO. 53:

“Do you find from a preponderance of the evidence |

that on the occasion in question as plaintiff alighted

from the moving caboose he failed to move to a place

of safety upon approach of equipment — on other

tracks, if it was?

“ANSWER: “Yes.”

SPECIAL ISSUE NO. 54:

‘Do you find from a preponderance of the evidence

- that such failure, if any you have found in answer to

the preceding special issue, was negligence, as s that term

has been ae to er ee

“AN: SWER: ‘

SPECIAL ISSUE NO. 57:

“Do you find from a-preponderance of the hedunie

that on the occasion in question plaintiff alighted be-

tween the rails on ends of ties, or on or between rails

of a turnout?’ —

“ANSWER: “N

SPECIAL ISSUE NO. 61:

“Do you find from a preponderance of the evidence .

_ that at the time and on the occasion in question the

-’ movement upon which plaintiff H. T. Shelton was then

.-Yiding constituted a yard to yard transfer of railway

equipment? |

“ANSWER: “No.”

SPECIAL ISSUE. NO. 65: ies aah

“Do you find from a preponderance of the evidence

that the injuries, if any, the plaintiff H. T. Shelton

sustained on the occasion here involved were not the

_ result of an unavoidable accident? ,

“AN SWER: “It was not an unavoidable accident.”

SPECIAL ISSUE NO. 66:

° “What sum of money, if any, if paid now in cash,

do you find from a preponderance of the evidence will

_ fairly and reasonably compensate the plaintiff, H. T.

Shelton, for the injuries, if any, that you believe from_

a preponderance of the evidence he sustained on the

occasion here involved, which resulted in whole or in

part from negligence, if any, found by you in this charge -

. to have been committed by the Defendant upon said

occasion?

| “AN SWER: $25,000.00.

SPECIAL ISSUE NO. 67:

“What percent, if any, do you find from a preponder- .

ance of the evidence does the negligence, if any, of the -

CC iitataaae Cm

the plaintiff and the defendant?

“ANSWER: 75% Plaintiff.”

The court finds that Special No. 67 was. voluntarily an- .

swered by the jury contrary to the instructions of the court,

and the court, in view of the jury’s answers in response .to

other issues, finds such answer is merely surplusage, and

further finds that the answer thereto does not present a

clear conflict with any of the answers to the issues the jury

were required to make in response to the instructions oe the ©

court and tht such ‘answer to Special Iaue No, 67 should

therefore be disregarded.

Under the pleadings, ciate and Sevdligt of the jury

7 the court is of the opinion that’ Plaintiff, H. T. SHELTON,

is entitled to have and recover judgment against the De-

fendant, MISSOURI-KANSAS-TEXAS RAILROAD COM-

‘PANY, in the sum of TWENTY-FIVE THOUSAND DOL- . |

LARS ($25,000. 00). : /

It is therefore, ORDERED, ADJUDGED AND DE-:

_ CREED by the Court that Plaintiff, H. T. SHELTON, do

~ have and recover judgment against Defendant, MISSOURI-

KANSAS-TEXAS RAILROAD COMPANY, for the. sum

of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00),

with interest thereon at the rate. of six percent (6%) per

annum from the date hereof, together with all costs in his

behalf expended and that he have his execution. 3

To all of which Defendant, i in 7“ "a duly and ai |

DATED, RENDERED, SIGNED AND ENTERED this |

the 20th day of May, 1963.

COREE EERE E EEE ET HEHEHE EE EE EOEESEEEEHE EEE EEHEH SESE EES

5 at

B. Opinion of Court of Civil Appeals:

No. 16,343.

nanny Nee ee RAILROAD Conmane.

’ Appellant,

v. |

H. T. SHELTON, Pixs

| . | Appellee.

FROM THE DISTRICT COURT

GRAYSON COUNTY, TEXAS . pe

Missouri Keneee Texas Railroad Comtpany has pees |

from a judgment for $25,000 awarded to appellee H. T. »

Shelton, a switchman employed by appellant. The suit was.

brought for damages for personal injuries. Recovery was

sought under the provisions of the Federal Employers Li-

ability Act, Title 45, Sec. 51 and 53, US.C.A.

Appellee alleges that he sustained serious injuries while -

alighting from a moving train not only as a result of being

struck by a caboose on the train from which he alighted

but also as a result of being struck by an engine coming

from ‘an opposite direction upon an adjacent track.

Sixty-seven special issues were submitted to a jury. In

- answering these Issues the ‘jury in effect acquitted appel-

. lant in all particulars except in its answers to Special Issues

Nos. 8, 9, 10 and 65, which four’Issues were answered as

follows: :

ie ™

46.

(8) Appellant permitted chatt, gravel, rocks, mounds of

_ earth or debris to remain in 1 the area of the hump where

ty appellee alighted;

_ (9) said act was negligence;

(10) appellee’s injuries resulted in whole or in part from

such negligence; | ) _

(65) appellee’s injuries were not the result. of an unavoid-

able accident.

“The jury did sink find that any act of appellee contributed

to cause his injuries. °

‘Appellant’s points on appeal, Nos. 1, 2, 3,.4, 8, 9, 10, 11,

12, 13, 14, 16, 17 and 18, all involve appellant’s main conten-

tion: that the court erred in requiring the jury to apply

different standards to appellant than to appellee in matters .

of causal relationship. The court submitted issues and defini-

tions which ‘permitted answers favorable to appellee if the

jury found that appellee’s injuries resulted in whole or in

part from appellant’s negligence. But .as to contributory

negligence the court submitted issues and definitions which -

_ permitted answers favorable to: appellant‘ only if the jury

found that appellee’s injuries were proximately caused by

his own negligence. :

Appellant not only objected to the issues as submitted

'. but obj to the court’s refusal to submit requested is-

sues and definitions which would-have required the jury to

apply the standards to appellant and appellee i in mat-

ters of cdusal relationship. , :

The Federal Employers Liability Act, Title 45, See. 51

expressly provides that every common carrier by railroad

while engaged in Interstate commerce shall’ be liable’ in :

damages to any employee suffering injury resulting “in

whole or in part” from the negligence of the railroad. This

. provision has been upheld in numerous decisions, ——,

and State. z -

. >We quote from the opinion of the Supreme Coeit of the

United States in Rogers v. Missouri Pacific Railroad Com-

pany, 77S. Ct. 443, 448, 352 U.S. 500:

| “Under this statute the test of a jury case is simply

whether the proofs justify with reason the conclusion .

that employer negligence played any ‘part, even the

slightest, in producing the injury or death for which

damages are sought. It does not matter that, from the

evidence, the jury ‘may also with reason, on grounds of

probability, attribute the result to other causes, includ-

_ ing the employees’ contributory negligence. Judicial

' appraisal of the proofs to determine whether a jury

question is presented is narrowly limited to ‘the single —

- nquiry whether, with reason, the conclusion may be |

drawn that negligence of the employer played any part

at all in the injury or death. Judges are to fix their

sights primarily to make that appraisal and, if that

test is met, are bound to find that a case for the jury is .

made out whether or not the evidence allows the jury _

a choice of other probabilities. The statute expressly

imposes liability upon the employer to pay damages for

injury or death due amnesic ori aed nae cas

(Emphasis added.)

(ian ‘ies sien eesti Ween tien: Comite tiie Ge.

_satisfied with the common-law duty of the master to

his servant. The statute supplants that duty with the

* far more drastic duty of paying damages of injury or -

death at work due in whole or in part to the employer’s

“negligence. The employer is stripped of his common-

law defenses and for practical purposes the inquiry in@

these cases today rarely pre8@nts more than the single

question whether negligence of the employer played any

part, however small, in the injury or death which is the

subject of the suit. The burden of the employee is met,

and the obligation of the employer to pay damages

arises, when there is proof, even though entirely cir-.

cumstantial, from which the j jury may with reason make

that inference. ‘si |

See also Dennis v. Denver & Rio Grande Western RR Co.,-

&4 S. Ct. 291, ........ i: eee ; Coray v. Southern Pacific Co.,

69 S. Ct. 275, 335 U.S. 520; Page v. St. Louis Southwestern

Ry. Co., 312 F. 2d 84; ee C. & O. BY, Co.,

~ (IlL.) 183 N.E. 2d 736.

_ There are also numerous opinions, some of them by Texas

omit in which it is held that the Federal Statute is con-

trolling over the common-law or statute of a state. Texas

& Pacific Ry. Co. v. Younger, 262 S.W. 2d 557; Rio Grande, ;

E.P. & S.F. R. Co. v. Dupree, (Comm. App.) 55 S.W. 2d

522; and see the annotations under Note No. 54 of Title |

45,Sec.51U.S.C.A.

Title 45, Sec. 53, U.S.C.A. wie provides that in

actions for personal injuries to an employee or for injuries

- resulting in death, the fact that the employee may have

been guilty of contributory negligence shall not bar a re-

covery, but the damages shall be diminished by the jury

' in proportion to the amount of negligence attributable to

such employee. There are many cases upholding this provi-

sion, the latest being Dennis v. Denver & Rio Grande Rail-

"road Company, supra. See also Wantlant v. Ill. Central RR

Co. 237 F: 2d 921; Sears v. Southern Pacific Co., 313 F. 2d

| 498; and. the numerous annotations under Notes Nos. 41-

44, of Title 45, Sec. 53, U.S.C.A. .

In applying this statute a definition of pore a negli-

gence has been approved which definition includes the .

proximate cause theory as applied to the alleged: contribu-

tory negligence of the employee. Chesapeake & Ohio Ry.

Co. v. Richardson (1941), 116 F. 2d 860, cert. denied, 61 S.

Ct. 961, 313 U.S. 574, 85 L, Ed. 1531. See also A.T. & S.F.

‘Ry. Co. v. Seamas, 201 F. 2d 140. |

We are convinced that under the Federal Statutes, Title

45, Secs.. 51 and 53, USC.A., it was not error for the trial

court to submit issues to the jury inquiring whether ap-

pellee’s injuries resulted in whole or in part frorn appellant’s

negligence. We have been impelled to this conclusion by

the plain wording of the statute itself and by the interpreta-

tion put thereon by numerous judicial opinions, especially

_ by: the strong language used by the Supreme Court of the

United States i in Rogers v. Missouri Pacific RR. Co., supra, » .

from ‘which. opinion we quoted earlier in this opinion. [

We are also convinced that it was not reversible error

for the: court to submit the contributory negligence issues

‘in such manner as to inquire of the jury whether appellee’s

‘negligence was, in any of the alleged instances, a proximate _ .

cause of his injuries. The Congress has seen fit by statute .

_to supplant the common-law duty of railroads to‘employees _

| by the more drastic duty of tlie “in-whole-ot-in part” causa-

Tate |

tion concept. But the Congress has not seen fit by statutory |

: enactment to change the common-law concept of proximate

. cause with reference to contributory negligence of the em-

: ~ ~ployee. And. in the absence of such a statutory enactment

the commoti-law rule rust, prevail. 'T. & N.O. R. Co. v.

_ Railroad Commission,.220 S.W. 2d 273; Smith v. J. Wein-

garten, Inc., 120 S.W. 2d 878, 880; City of Corpus Christi

° “We Coffin, 35 S.W. 2d 202; State v. eee ee

‘174; 15 CJS, ng .

}

Whe, aioe lo peahitncte, eee, sete Ienenelotet

with the Constitution and laws of the state or the United

States, Art. 1, V.A.C.S.. The common law prevails with

reference to causal relationship in contributory negligence.

It is a long established rule that the Federal Courts enforce

the common law of the state in which a cause arises and is

tried when such common law is ‘not in conflict with the

“ Constitution and: statutes. Erie Railroad Co. v. Tompkins,

58 S. Ct. 817, 304 U.S, 64, 82 L. Ed..1188, 114 A.L.R. 1487;

Sa (Whsal Uni See a) FT “

| Jester a pe v.. United~States, et al), 281 F. 877; 15

- CI.S.630. | ; .

lant have been cited to us and we have found- none. But

"there are cases which seem to us to’point in the ditection

of our holding in regard to the employee’s liability for his

own negligence under Title 45, Sec: 53, U.S.C.A. Sears v.

Southern Pacific Co., 313 F. 2d 498 (Syl. 3); A. T.& S. F.

Ry. ‘Co. v. Seamas, 201 F. 2d 140, We overrule appellant’s

Points Nos. 1, 2, 3, 4, 8, 9, 10, 12, 13, 14, 16,"17 and 18.

In its Point No. 5 appellant says that it was error for

| . the court to base its judgment on the jury’s findings to |

‘Special Issue No. 9. The issue Sas submitted as follows: ;

“SPECIAL ISSUE NO. 9:

“Do you find from ‘a preposiderance a the perc

- that such act in permitting either chatt, gravel, rocks,

mounds of dirt, or debris to remain in the area‘of the

-hump where Plaintiff alighted from said caboose, if you

! _have'so found. in answer to the preceding special issue,

In was negligence, as defined herein? ;

“Answer. Yes or No.” ona ‘ ’

‘The answer of the jury was “Yes”, In answering Issue No.

10 the jury found that appellee’s i injuries resulted i in =

or in part from said negligence.

In answering Special Issue No. Vis Gs tal tod hee .

appellant had not failed to furnish appellee a safe place in

which to work. | ,

Appellant contends. (1) that Special Issue No. 9 is ‘multi-

farious and ({2) that the jury’s answer to the issue is in.

conflict with the answer to Special Issue No. 2.

. The first of the above contentions : raises the "icanitots,

often vexing, of whether an ‘issue as framed is defective

— because it submits more than one ultimate issue. We have

concluded that the issue is not defective in that regard. It :

has offen been. held that an issue is not multifarious because

it groups several: evidentiary or subsidiary facts together,

.. §0 long as it involves only one ultimate issue. Duff v.

Mathews; 300 S.W. 2d 679; Jones v. ‘Scott, 266-S.W. 2d 584; -

ee v. Oldham, 238 S.W. 2d 596; Howell.

v. Howell, 147 Tex. 14, 210 S.W. 2d 978: Service ‘Mutual

Ins. Co. of Texas v. Territo, et al, 147 S. W. 2d 846. Really

only one: ultimate>issue was inquired ‘about in Special Is-

sue No. 9: whether appellant was negligent in permitting

foreign @ubstances to remain in the area in question.

As to the second of appellant’s ‘contentions under its

Point No. 5 we must give an affirmative answer. The jury’s

findings in response to Special Issues Nos. lhe cl atc

In Arnold v. Panhandle & SF. “Ry Co., 18. Ct. 840,

353 U.S. 360, 1 L. Ed. 2d 889, the jury acquitted the rail-

road on eight specific acts of. negligence, but found that the

. railroad had not furnished Arnold a safe place in which to .

_work. In holding that the answers were not in conflict the -

: Supreme Court of ‘the United States reasoned that the

specific findings were not exhaustive or all-inclusive of the

acts which might have constituted negligence, while the -

unsafe-place-to-work finding was exhaustive’ and all-encom-

passing. In other words, the unsafe-place-to-work negligence |

may have resulted from an act not named or included among |

Reta . a /.

‘ Cts vedinia Ok her dias dined th agin toe, te

this case the jury answered “No” to an inquiry whether

the railroad had failed to furnish appellee a safe place to

work, then found from a preponderance of the evidence

that the railroad was negligent in permitting chatt, gravel,

: rocks, mounds of dirt, or debris to remain in the area where

appellee alighted from the caboose. Since the safe-place-to-

work finding is exhaustive and all-encompassing it cannot.

Est li i aki Matacic

The Arnold case is really aytngetty for nee that,. the

answers here are in conflict.

In support of its view that there is no conflict between

_ the:jury’s answers to‘Special Issues Nos. 2 and 9 appellee

seeks to invoke the rule that a negative answer to a negli-

gence issue submitted in a negative form is not the\same

as an affirmative answer of negligence. It ‘merely means

that the party having the burden of proof did not establish

_ the. non-existence of the condition. ‘Hill v. Leschber, 235 .

S.W. 2d 236; Gulf States Utilities Co. v. Grubbe, 44 S.W.

2d 1001; 41-B Tex. Jur. 780. |

Jin she: oe: sthadion: Gas’ calm. had on. fr sation

is not applicable here. In answering Special Issue No. 2

“No”. the jury in effect found that appellee had not dis-

charged its burden of showing that appellant had furn

appellee arf unsafe place in which to work. In ans

Special Issue_No. 9 “Yes” the jury in effect found tfat ap-

pellee had discharged its burden of showing that appellant

. had furnished appellee an unsafe place in which to work.

*s ~Both answers cannot_be_correct. We’ think the test-quoted. . .

in Pearson v. Doherty, 143 Tex. 64, 183 S.W. 2d 453, (Syl.

2) ' applicable here. The two: findingh are in conflict. “We -

sustain appellant’s Point No, 5,

+ ended ais alias

the submission of Special Issues Nog 8 and 9 on various _

grounds. Since we have held that the jury’s answer to Issue

No. 9 cannot stand we shall not pass upon the question.

whether ‘ei two related Tnsues were technically defective

in the form in which they were submitted.

In its fifteenth point appellant asserts that the court

was in error in overruling appellant’s motion for judgment

- notwithstanding the verdict.of the jury. The court could.

properly have sustained the motion only if there was no

evidence to sustain the jury’s verdict. In re King’s Estate,

‘150 Tex. 662, 244 S.W. 2d 660; Calvert, “‘‘No Evidence’ and

an tape Evidence’ Points of Error,” 38: ‘Texas Law Re-

"Appellee tinflied that ia slighting trp the caboose he

stepped on an object that “felt like itawas about as big as

~ your two fists or bigger.” He had earlier signed a statement’

(which he said he did not know his wife had made out) in

which statement he made no mention of a rock or some-

ae “about as big as your two fists.” , :

"maui Gall Uudk thes Swann tage ofl

that side of the train was a safe place and a proper place

to get off at.”. He further testified “I selected to get off

there, because it the safe place-to-get-off.”"These last two

statements by appellee if taken out of their context would :

appear to be in conflict with appéllee’s statement that he

stepped on an object as big as both fists. But when ajipel-

lee’s testimony is considered in connection’ with its context

ni in comcton Wii Mo tetineny ao wha oad with

the testimony of other witnesses, the apparent ‘om—

__be-reconciled. It was while appellee was being cross-exam-

ined as to’ whether he was negligerit in alighting between

_ two moving trains that he said that he had selected “a safe ;

Se rere

testimony: !

\. “Me, Freels: Yoin pit oll dak hare’ withoul. guniiting |

en re A nee eee ae

you not?

_ “A, No, sir.

“Q. You say you did not? ne : 2

“A..1 got off guatding myself. ree 3)

site all tight, si. You got off without guarding your-

self against unsafe footing, did you not? Is that what

you are saying here? .

“A. Got off on what I knew to e cleanest place for

footing. .

“Q. All right, sir. And i is clean out there, ion’t it?

WA, The cleanest place. No, air, it’s not clean.”

There was ample testitiony from other witnesses that the

| Ee rene cts see He> Ont cake ol Gatets Inc

. ing various substances. -w.

$3 <cteetik on pate th sai, tuk meipetiaits Gon dang ia

conflicting on the question of a safe place to alight, such

conflict would raise a fact issue: Overton Refining Co. v.

} - Harmon, 81 S.W. 2d 207 (Rev. on other grounds, 109 S.W.

_ Wd 457); USF. & G.. Co. v. McCollum, 70 S.W. 2d 751, -

_* Hatley v. Hatcher, 376 S:W. 2d 943; 41-B Tex. Jur. 489; 24

____ Tex. Jur. 24 369. Appellant’ fifteerith point is overruled. |

: n its Point No. 19 appellant alleges error of the court

in permitting appellee to show notice of coriditions at the

Ase gaint eran ob eeapaatate: et, Sie pelienee

yard stint as: well as the taking, of a strike vote with

reference to the whole railroad yard.

_ Evidence concerning the ‘aBove matters was first objected -

to on the ground that the questions did not limit the inquiry

vA Later appellant objected to more limited questions on led <r

ground that the questions were “irrelevant and immateri

“no proper predicate” and. “prejudice”. Still later appellant

P itself brought out the questioned evidence on cross examina-

> tion. Under the circumstances no reversible error is shown.” —

Medina Electric Coop., Inc. v.“Ball, 368 S.W. 2a 227; : Bales

*y, Delhi-Taylor Oil Corp. ss 362.S.W. 2d 388; Hooten v. Dun-

bar, 347 S.W. 2d TT5; “Withers v. Taylor County Lumber

Co, 326 S.W. (2d 173; Marsh v. State, 276 S.W. 2d 852. _

Appellant’s Point No. 19i is overruled.

In its Points Nos-'20 and 21 sitions takes the poaitibas

that (20) there was no evidence to support the submission

of Special Issue No. 8 and (21) there was insufficient: evi-

" -dence to support the submission of the issue. . Without going

into further detail in regard to the evidence, we cannot say

that there was no evidence in support o! ‘the: submission .

~ of the issue. And the “no evidence” rule is- epplicelio in

weighing these points.

> In its Point No. 22, appellant pa ‘ia ioe of the

' jury to Special Issue No. 8 is so against the great weight

"and preponderance ‘of the evidence as to be manifestly

_ . wrong. We see no merit in this point. There was ample

evidence to support the jury’s answer, some of which evi- —

dence we have pointed ‘out. Point No. 22 is overruled.

pte...

The court submited Special ous No. 67 as follows:

“ “What per cent, if any, do you find from a preponder- }

- ance of the evidence does thé negligence, if any, of the

~ Plaintiff bear to the entire negligence, if any, of both |

' the plaintiff and defendant?”-:

This issue was accompanied by an instruction that the issue

was to be’ answered only in. the event the jury found that

| contributory, negligence’ on the part of plaintiff proximately _ ee

caused his own injuries and that negligence on the part’ of

defendant resulted in whole or in part in defendant’ s in-

juries. We think the issue was properly submitted. Thomp- .

: son v. Robbins, 157 Tex. 463, 304 S.W. 2d 111, 116-117. Not-

withstanding the instruction the jury answered the issue

“715% Plaintiff.” In doing: so the j jury plainly went contrary |

- to the instruction, for none of the contributory negligence

: . issues was answered in the affirmative. Therefore, the an-

’ gwer to Special Issue No. 67 can have no significance. In the

- / absence of any finding of contributory negligence the com-

fea ‘parative negligence doctrine, or the diminution of the dam-

ages rule can have no ae, binsioncnte v. ‘Robbins |

Bcentive it the cociffiet in thie ain answers to noe

Issues Nos. 2 and 9 the judgment of the trial court will be *

reversed and the cause remanded for another trial.

ses eseadhyssseseeseeeeseessessseeseeeceseeeeners Bo vececceccece

C. Opinion of Court of Civil Appeals ‘on:Motion for

- Re in ne

SMe, 16848

Missourt-Kansas-Texas RAILROAD Company, “ae

oe: 5 a sop, *

= me |

HL T. Suetton, Se hs 3

- : | rh - Ap -°

FROM THE DISTRICT COURT -

: OF. =&

_ GRAYSON COUNTY, TEXAS.

aed a!

. ON MOTION FOR REHEARING

"In his motion for rehearing appellee vigorously assaile the

holding in..our original opinion: that the jury’s answers to

' Special Issues Nos. 2 and 9: are in irreconcilable conflict,

necessitating a reversal of the court’s judgment. as nesnks

| " Special Issue No. 2, the jury’s answer, thereto and the in-

structions to the jury accumpanying the submission of the >

special issue were as follows:

¥ tp i

. &@

“You are further instructéd that the duty to éxercise :

have ref y to the physical conditiotrof the place

itself but has reference to the negligent acts, if"

any, you find of defendant's puployees ‘on the occasion an

-- In question. t

“You are further instructed that this duty is # duty |

; Which becomes more imperative as the risk increases.”

_ Sci Iie No.9 cain ali ou gol pinin,

| so need not be repeated here. ; !

| Applic fasiee uct i jcey's ehiebice Se the tee tebe)

are consistent with each other and are not at all in con- :

flict. We shall briefly present some comtaphions i in sup-

port ofthis view. HSS a

| APPELLEE'S CONTENTIONS

(1) A to appellee the jury’s answer of “No” to

~ Special Issue | Pnlokn de tutocnge be lagem

_firmative finding that appellant provided appellee |a rea-

sonably safe place in which to work. The answer is merely 3

: a finding by the jury that appellee did not discharge his

burden ‘of proof under that issue; that the issue as drawn

was a “negative submission” which inquires whether the jury |

finds from a. preponderance of the evidence that appellant

. “failed” or “did not”.do a certain act as opposed to an

“affirmative” ‘subeniasion, meaning on inquiry whether the

. jury finds that appellant did a certain act.

_ Ota thes clive ied ‘the jury's anidiver 46° Specied ieous No. ,

“8 is an affirmative’ finding of a specific act of negligence on

the part of appellant. This finding necessarily means that

. . ™ Nhe

« My a : - \ e

60 - eS

ipl’ dh inch bids toda of pec was the sido

"tive submission of Special Issue No. 9. In the face of this af-\.

‘firmative finding of | negligence appellant cannot.escape its —

Jiability because the jury found that the evidence did not pre-

. Pponderate under the negative submission of Special Issue.No. —

2. In support of his argument appellee cites us to Halliburton.

-+ Oil Well Cementing. ‘Co. v. Groves, 308 S.W. 2d 919, 938;:

.,' Hill v. Leschber, 235 S.W. 2d 236; Gulf States Utilities Co.

~ y, Grubbs, 44 S.W. 2d 1001; 41-B Tex. Jur. 780. -

(2) In further support of his cohtention that the: two

. angwers are not in conflict but are consistent with each other. |

appellee makes this argument: oe: ae

“Even if the answer to Special aus No. 2 were to be: -

regarded as-an affirmative finding, however, it does not .

appear there would be irreconcilable conflict between °

“the two issues. From the standpoint of the jury, from

all the testimony and evidence in this case, there i is a

reasonable explanation of the angwers to tle two issues.

The i inquiry with respect to furnishing a reasonably safe

place in which to work could have been: answered by

the,jury based upon testimony and :evidence covering

the condition of the entire Ray Yard in Denison, | an

- area of a considerable number of acres. The i inquiry was ~., 4

‘not localized: to the area of ‘the hump where Plaintiff -

alighted’; however, with respect to Special Issue No. 9,

- the inquiry was localized to ‘in the area of the hump’, and

Special Issue No. 9 inquired only about that area, which .

is-only.a small fractional part of Ray Yard; the jury

liad evidence with respect to the Yard ‘generally and

had evidence. with acta to the specific area of ‘the

_ hump.”

@) Agpielion cies selcti-ws sk 5 tila ele tp tah

‘nounced in several Texas cases to the effect that a specific

ait: finding will prevail over a general finding in attempting to

é.

reconcilé a seeming conflict in jury answers. Ft. Worth &

Denver Ry. Co. v. Britton, 310 S.W. 2d 654, 657; Harbin.

an 2 City of Beaumont, 146 S.W. 2d. 297; Bragg, et al, v.

Hughes, 53 S.W. ey 3:

(4) Appellee says that “i Conkadaein Udi

_. > Of state procedure defeat substantive rights granted appellee.

by Congress under the Federal Employers Liability Act.”

This argument is based on the statement by the Supreme

7 Court of the United States in Arnold v. Panhandle & Santa

Fe Ry. Co., 353 U.S. 360, 1 L. Ed. 2d 889, 77 S. Ct..840

as follows, ba *-* the assertion of Federal rights, when

plainly and ‘reasonably made, is not to be defeated under

_ the namie of local practice.”

OPINION ON. REHEARING

We find ourselves unable: to agree with appellee. . |

(i) Appellee’s arguments overlook the very important in-

struction to the jury for its guidance in answeririg Special

Issue No. 2. For emphasis we repeat that instruction:

sonably safe place to work does not have reference only to

. the physical condition of the place itself, but also has refer-

* ence to the negligent acts, if any, you find’ ‘of ‘defendant’s

employees on the occasion in question.” (Emphasis ours)

In the light of the above instruction the effect of the

jury’s answer’ of “No” to Special Issue No. 2 was that the

’ jury did not find from a preponderance of the evidence that

appellant had been guilty of any act of negligence with re- :

gard to a safe place to work. Yet in answering Special - Issue

No. 9 the jury found from a preponderance of the evidence

* 62

- that appellant had been guilty of an act of negligence; per-

mitting chatt, etc. to remain in the area of the hump where

" sppelice alighted fom the choses, “The two answers seem

to us to be in irreconcilable conflict.

(2) Wo are, alse of thé opinion that appellee's argument

| Paragraph (2) of his contentions becomes wholly unten-

able when considered’ in. connection with the court’s very

plain instruction in connection with the submission of Spe- :

cial Issue No. 2 as above quoted.

(3) We are aware of the holdings in the cases cited by

appellee in support of his argument No. (3). But we do

not consider those holdings applicable here for these rea-

_ Sons:

(a) The holdings refer to a state procedural rule. The Su-

preme Court of the United States, as cited and quoted by

‘appellee in the Arnold: case, refuses to recognize state pro-

cedural rules in passing on substantive rights under Federal

laws. See also 79 A-L.R. 2d 574.

(b) The Amold case itself holds in effect that a specific

finding of no negfigence will not prevail against a general

finding of .an unsafe place to work because the latter find-

ing is more exhaustive in its scope. Inf the case now before us

the position is reversed. The finding in answer to Special

Issue No. 2 is broader in its scope than the answer to Spe-

cial Issue No. 9. The substance of the jury’s answer to Spe-

cial Issue No. 2, when conzidered in the,light of the instruc-

tion accompanying it, is that the jury did not find from

a preponderance of the evidence that there was any negli-

ly | ;

gence on the part of appellant with respect to a safe place

to work. Such finding, in the view of a majority of this

court, collides with the jury’s answer to Special Issue No. 9 .

where the jury finds specifically from a preponderance of

the evidence-that there was an act of negligence on the part .

of appellant: permitting chatt, etc. to remain in the area.

(4) We bow.to the holding of the Supreme Court of’ the

United States to the effect that the assertion of Federal

rights is not to be defeated under the'name of local practice.

But we do not consider that/rule applicable here, for the

question before us involves the substantive rights of the

- parties * * * the ultimate issue of negligence. Appellee in

his Supplemental Motion for Rehearing says, “Appellee

: agrees with appellant that the safe place to work issue is an_

ultimate one.” He then falls back on his theory that since

Special Issue No. 2 was not submitted or answered in affirma-

tive form, there cannot be any conflict in:the jury's answers.

_ Appellee’s motion: for rehearing is overruled.

OVERRULED...”

SOP R HR em me eee emer sree eee eaas sess esate sees sees sseeseeesessaes

“No. 16,343

Missouri-KANsas-TEXAS RAILROAD COMPANY,

a Appellant,

an eae H. T. SuEtron, .

: Appellee.

FROM THE DISTRICT COURT

OF .

GRAYSON COUNTY, TEXAS

After careful reconsideration and study of the record I

find myself unable.to agree with my esteemed brethren on -

the ultimate disposition of this appeal. I am in complete

accord with the majority opinion as it relates to all points

presented with: the exception of the point of error relating

to the alleged irreconcilable conflict between Issues Nos. »

- 2and 9. ee ee te ere eee

I respectfully record by dissent. _ —_, a _

‘The majority has concluded that this case should be re-

versed solely because of an alleged irreconcilable conflict be-

tween the answer of the jury to Special Issue No. 2

and the-answer of the jury to Special Issue No. 9. These

. issues, together with the instruction following Issue No. 2,

have been copied verbatim in the original opinion and the ;

opinion on rehearing. The primary’ question, therefore, is

whether a conflict in fact exists between the answers as-

signed by the jury to the two questions submitted to them.

A conflict exists in a jury verdict if.the answers to two or

| 65

more special Unyes tunot both be true, When both iain

and the jury’s answers thereto, are subjected to a careful.

exegesis I am convinced that there is no actual conflict at

- all. Special Issue No: 9 presents no problem. It: amounts to

an affirmative submission of the question of whether the act

on the part of the railroad in permitting chatt, gravel], rust,

mounds of dirt, or debris to remain in the area of the hump

where plaintiff alighted from the train was negligence. To

this question the jury gave an affirmative answer. The plain-

_ tiff therefore fulfilled his obligation to discharge the burden

of securing the jury answer of’ ves" b0 this eapential ele-

- ment of recovery.

A 6s thiaclal’ tous Mes’, coal te Sie dian taliade

, we have an entirely different situation. By this issue the trial

court asked the jury whether they found from a preponder-

ance of the evidence that on the occasion in question de-

. _antant SASS SS Eee + aeeney See eee

ary wie by thie axewer? 1 can concelve of nd étlice' moan.

ing than that the answer is merely a finding by the jury

that appellee did not discharge his burden of proof as to

that issue. It must be observed that the issue, as submitted, |

_ amounted to a “negative submission” as opposed to an “af- .

- firmative submission” as in Special Issue No. 9. The answer

“No”: to such issue merely means that the jury found that

the evidence did not preponderate in favor of a finding of

failure to provide a reasonably safe place to work. However,

the mere fact that the plaintiff failed to sustain his burden

of proof on this issue alone cannot reasonably be said to be

equivalent to an affirmative finding that the railroad com-

pany did provide appellee with a reasonably safe place to

' - work on the occasion in question, or that its servants were —

not negligent in any particular act or omission.

Thus we have a situation where the appellee has failed to

sustain his burden of proof and secure a finding on his

general issue of failure to provide a safe place to work but,

. in Special Issue No. 9, appellee has successfully maintained

his burden of proof to establish specific negligence which

contributed to bring about his injuries. I conclude that the

jury’s answer to Special Issue No. 2 is not an affirmative find- ,

ing of any fact, or omission of duty, but is nothing ‘more ”

than a statement by the jury that the evidence presénted by | 3

appellee was not sufficient to preyionderate the evidence in

: favor of the finding sought by the issue. The mere failure ~

‘to support his burden of proof on this issue does not, as

a matter of law, amount to a converse finding against appel- .

lee. 41-B Tex. Jur. 780; Halliburton Oil Well Cementing Co.

v. Groves, 308 S.W. 2d 919, 938; Hill v. Leschber, 235 S.W. 2d

236; Gulf States Utilities Co. v. Grubbs, 44 S.W. 24 1001.

Accordingly, ‘both answers of the jury to the two special.

issues involved may be well true and yet not be in conflict.

Even though we should assume, arguendo, that the answer

of the jury to Special Issue No. 2 amounted to an affirmative

finding, as contended by appellant, and as found by the ma-

' jority in their opinion on rehearing, there is, in my judgment, ~

a compelling reason why there is no fatal or irreconcilable -

- conflict between that answer and the answer of the jury to

“tissctad laous Bas By both sinte and-tedécal-law’ we are

enjoined to the performance of a duty to construe verdicts

as not being irreconcilably conflicting when there is any rea-

’ sonable explanation of seeming conflicts. Courts should al-

ways assume the honesty and at. least ordinary intelligence

of a jury and that they never intend that their specific find-

| ings of fact should be destroyed by'a general finding in seem-

ing conflict therewith. 41-B Tex. Jur., Sec... 580, p. 795;

‘Bragg et al v. Hughes, Civ. App., 53 SW: 2d 151; Ford v.

; Carpenter, ‘147 Tex. 447, 216 S.W. 2d 558, 562.:

~ In Gallick v. B. & O. RR. Co., 372 U.S. 108, 9 L. Ed. 2d

618, 83'S. Ct. 659, the United States Supreme Court said:

“But it is the duty of the courts to harmonize the

answers, if it is possible under a fair reading of them.

“Where there is a view of the case that makes the jury’s

answers to special interrogatories consistent, they must

be resolved that way.’ Atlantic & Gulf Stevedores, Inc.

v. Ellerman Lines, Ltd, 369 U.S. 355. We therefore must

attempt to reconcile the jury’s findings, by exegesis if.

necessary, as in Arnold v. Panhandle.& S.F.R. Co., 353.

U.S..360; McVey v. Phillips Petroleum Co., 288 F. 2d |

— -—B8; Morris v. Pennsylvania R. Co., 187 F. 2d 837, before

- we are free. to disregard the jury's special verdict and

remand the case for a new trial.” ;

Applying these well establistied rules to the record before

us, it is evident that we can, as we must, Teconcile: the

jury’s answers to these issues. Special Issue No. 2wasa .

general issue, whereas Special Issue No. 9 was a specific issue

of specific negligence. The. specific finding of the jury in

answer to Special Issue No. 9 should prevail over any

possible general finding as contained in Special Issue No. 2

‘when we attempt to reconcile an alleged conflict in jury

answers. Ft. Worth & Denver Ry, Co. v. Britton, 310 S.W.

2d 654, 657; Harbin v. City of Beaumont, 146 S.W. 2d

297; Bragg.et al v. Hughes, 53 S.W. 2d 151; Panhandle &.

Santa Fe Ry. Co. v. Amold, 283 S.W. 2d. 303, j meremned,

353 U.S. 360, 1 L. Ed. 24°889, 77 S. Ct. 840.

dh es Sek ‘tas kas hs a a i |

harsh construction upon the alleged conflicting verdict of the

jury in'this case. I believe that the law imposés upon us, as

; a reviewing court, the duty of analyzing the jury’s verdict in |

‘the most favorable light and resolving any possible conflict

‘so that the verdict may stand, rather than fall. In my

humble judgment this verdict presents one that can easily be

reconciled, and should be reconciled, in the interest of justice.

Finally, I think that we must bear in mind that we are.

-/ here dealing with a Federal remedial statute, the Federal

Employers’ Liability Act. The Supreme Court of the Unitéd

States has repeatedly held that this Federal remedial statute .

| is liberally construed in favor of an injured workman. As

_stated by the Supreme Court of the United ‘States in

Arnold v. Panhandle & Santa Fe Ry. Co., 353 U.S. 360,.1. -

L. Ed. 2d 889, 77 S. Ct. 840: “* * > the esliation of

} Federal rights, when plainly and reasonably made, is not to

be defeated under the name of local practice.”

In Davis v. Wechsler, 263 U.S. 22, 24, 44 S. Et. 13, ‘e

L. Ed. 143, the Supreme Court of the United States said:

“Whatever springes the State may set for those who

are endeavoring to assert rights that the State confers, —

the assertion of Federal rights, when plainly and reason-

ably made, is not to be defeated under the name of

local practice.”

| 3 | 6 |

The majority contends that the question before us involves

‘the substantive rights of the parties rather than procedural —

rights. I carinot agree. I believe that the same substantial

question of states procedural’ rights is involved here as was

involved in Amold. In this case Shelton has sustained his

_ burden:to establish an affirmative finding of negligence on the

| part of the railroad company which contributed to cause his

injuries for which the jury said he should be compensated”

_ ‘The mere fact that Shelton failed to introduce sufficient evi-

" dence, in-the opinion of the jury, to preponderate in favor

of his general allegation of failure to provide a safe place to _

work, does not, in my’ judgment, defeat his right to recover .

- under this Federal statute.

I would sustain the motion for rehearing and afi

-‘ the judgment of the trial court. |

SOTTO HHT TH EHH MEET EEE EEH HEHEHE EEEHEEEE EEE HEHE EEE DEES

DELIVERED:

October 9, 1964.

D. Grier Rafasing Petitioner's Application for Wilt :

of Error and Order Overruling Petitioner’s Mo-

tion for Rehearing on Application for Writ of :

Error:

IN THE SUPREME COURT OP TEXAS

No. ‘A-10, 487

| H. T. SHELTON

‘ ve

Missouri-KaNnsas-TEXAS RalLroaD COMPANY |

FROM GRAYSON COUNTY,

FIFTH DISTRICT. .

Application of petitioner for writ of error to the Court .

(OS ee a

having been duly considered, and the Court having, |

mined that: the application presents no error requiring re- _

versal of the judgment of the Court of Civil it is

ordered. that said application be, and hereby is, refused.

__ It is further ordered that applicant, H. T. Shelton, pay

all costs incurred on this application.

w =

71 ,

No. A-10,487

1 HT. SHELTON

DA :

| v.

_ FROM GRAYSON COUNTY,

: | .. FIFTH DESEREUE:

~ Petitioner’s wsnitbei for rehearing of por arses for writ

of error having been duly considered, it is ordered that said;

' motion be, and hereby is, overruled. j

- a9

APPENDIX B 7

II. Federal | Employers Liability Act, 45 usc, Sec. 51:

a é

“Section 51. Liability of common carriers by railroad,

“Every common carrier: by pene while engaging in

commerce between any of the several States or Terri-

tories, or between any of the States‘and Territories, or

*between the District of Columbia and any of the States _

or Territories, or' between ‘the District of Columbia or

any of the States or Territories and any foreign nation

or nations, shall be liable in damages to any person

suffering injury while ‘he is employed by such carrier

' in such ¢omfmeree, or, in case of the death of such

~ employee, to his ‘or ‘her personal representative, for the

benefit of the surviving widow or husband and children

of such employee; and, if none, then of such employee’s

parents; and, if none, then of the next of kin dependent

upon | such employee for such injury or death resulting

in whole or in part.from the negligence of any of the

officers, agents, or employees of such carrier, or by .

reason of any defect or insufficiency, due to its negli-

gence, in its cars, engines, appliances, machinery, track,

roadbed, works, boats, wharves, or other equipment. .

“Any: employee of a carrier, any part of whose duties as

such employee:shall be the furtherance of interstate or

foreign commerce; or shall in any way directly or closely

and substantially, affect such commerce as above set

forth shall, for the purposes of this Act (Secs. 51-60 of

.- this title), be considered as being employed by such

carrier in such commerce ‘and shall be considered as.

‘- entitled to the benefits of this Act (Secs. 51-60 of this

title). and of an Act, entitled “An Act relating to the

‘liability of common carriers by railroad to their em- .

‘ployees in certain cases.” (approved April 22, 1908)

(Secs. 51-60 of this title), as the same has been or may |

“hereafter be amended. (Apr. 22, 1908, c. 149, Secs. 1, 35

Stat. 65; Aug. 11, 1939, c. 685, Sec. 1, 53 Stat. 1404).”

in interstate or foreign cotmmerce, for injuries to em ie:

- ployees from ‘negligence — ition of employ:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.