Opposition Brief — Hullum v. St. Louis Southwestern Railway Co.

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aria,

Office-Supreme Court, U.S. -

FILED :

| i Neer @8T 20 1965

LISRARY,. | ee

In the |

Supreme Court of the. United States

“OCTOBER TERM 1965

No. 488 .

Mrs. ADELLE HuLLuM, Administratrix,

Petitioner,

Sr. ‘Louis a a aneae CoMPANY,

Respondent.

' BRIEF IN OPPOSITION .

TO PETITION FOR CERTIORARI

Ciype W. Fives,

GALLOWAY CALHOUN, JR.,

JACK W. FLOCK,

Citizens First National Bank

Bldg.,

P. O. Box 629, -

Tyler, Texas 75702.

Of Counsel:

CLypE W. FIDpEs

GALLOWAY CALHOUN, JR.

RAMEY, BRELSFORD,

Frock & DEVEREUX

WARLICK PRESS, INC.—2263 VALDINA STREET—DALLAS—ME 1-3130

SUPREME COURT. U = . JOUN F. DAVIS, CLERK |

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eee ) List of Authorities

Dollie Adams Oil Corp: v. Cree, 279 S.W. 2d 619

Ns cstcreasernandvantnasicncsisistndiobraatoisaasionnesisigtciaonereces 15

Archey v. Nedetlandsch-Amerikaansche Stoom Mast,

354 S:W: 2d.688, cert, den., 9 Law Ed. 2d 236, 371

US. 929, 88 Sup. Ct, 299 oi cocecssitsnd secs 87

‘Arnold v: Panhandle and Santa Fe Ry. Co,, 353 i

USS. 360, 1 Law Ed. 2d 889, 77 Sup. Ct. 840 (1957) ey 26

Atlanta Joint Term v. Knight, Ga. (1958) 106 2d s

Pi RRA aS RE aac cree: aan Rae 11

Atlantic & Gulf Stevedores v. Ellerman Lines, 369°

U.S. 355, 7 L. Ed. 2d 798, 82 S. Ct. 780 o.oo... 9

Atlantic Coast Line Ry. Co. v. Mims, 242 U.S. 532,

‘Bailey v. Central Veimont Ry. Co, 319 U: S. 350, |

87 Law Ed. 1444, 63 S. Ct. 1062........ Seria. ibe 27

R. H. Baker & Co. v. Smith-Blair, 331 Fed. 2d 506,

ee ec iancc 25

| Batton v. Atlantic Coast Line Ry. Co., 198 S.E. 674,

_ Cert, Den,, 308 U.S. 651, 82 L. Ed. 1112, 58 S. Ct:

TBO oesesssssssonssonsnegscessseesenloessslbsescsnsssessseesemessnasbasssssseesen ang

Blake v. Harding, 54 Utah 158, 180 Pac. 172 ae a

> Blaugrund v. Gish, 142 Tex. 379, 179 S.W. 2d 266... 20 °

Boaz v. Whites Auto Stores, (1943) | 141 Tex. 366,

172 S.W. 2d-4811 ........ Beet ie a eras nea tach co ces 31-32

Brazos River C. and. Reclamation Dist, v. Harmon,

178 S.W. 2d 281 (1944) ee sstcaus 35

Brown v. Western Ry. of Alabama, 338 U.S, 294, 94.

'L. Ed. 100, 70 S. Ct..105 (1949) PR EEC TARR . 10

} Camco Ine. v. Evans, 377 S.W. 2d 703, (Tex. Civ.

— 1963, Ref. NRE) : ae Csssswussseetenbesdeoasnsnsnsepeongncnsnsee nk

List of Authorities— (Continued) :

: Page

Chastain v. Texas Christian Missionary Society, 78

Os i Ta OI DG oi ivsssescccdisecncscsivnsssteceicessccntomnssins tei ...

City of Fort Worth v. _— (1945) 143 Tex. 551, 186

SW, BO GUE on cccassscnscsstscssssseccrsrssonseinececesqecsanseesisecensorsousoveseedy 16

Colonial v. Thedford, 51 S.W. 263 (no writ) 00.0... | 46

Crowel-Gifford Furniture Company v. Cloutman,

‘COA, S76 GW: Bb GBD, NTR. ices liccsesccscesscsceccecn.. BE

Cunningham et ux v. John Suggs, C:C.A. (1960)

S40 S.W. 2d 360, NRE ........ccccccssecccsseccsngtecssseteesssseeenssen 19

- Dakan v. Humphreys, 190 S.W. 2d 371 — (No |

WEEE) a viccscccsteiecosesssenionnsineconesterverenesssenncaiqeoegshssaseasteserssesesesaees 35

Dallas. Railway & Terminal Co. v. Darden, Com.

Hapa, SB: GW. Bd TTT GAGBE) 5,..nncncvecccssessisccccnssnscoscnseoseins 54

Dallas Railway & Terminal Company v. Straughan, :

254 S.W. 2d 882, no writ history ...0...0......t eee: 15

Dallas Railway & Terminal Company v. Strickland

Transportation ‘Company, sath ite 225 S.W. 2d

GOR, (INO WHEE) nniececceccdisscccsprecscsccsscssqneccecessecscensassscscsesacoee: 20

Daughters of Tabor v. Fridia, 91 S.W. 2d 404 (no

writ) AIP UE Te aR Re Ee TOM OF seed eR OO. 46

Deen v. Hickman, 358 U. I eee ee as 57

DeEugenio v. Allis-Chalmers Mfg. Co., 210 Fed. 2d

ea Ae ee NO a Ee Srna arava 25

Employers Mutual Casualty Company v. J ohnson,

SS Be i TE I ccc iecsatasectetigeccesscanntreeortosnseg snes 25

Ervay-Canton Apartments v. Hatterick, 239 S. w.

WA UO, HEUER CUNY asic csce dine dacasndcacoqegpsescebecgtnuene 49

Farrand v. Houston & TCR Co. 205 S.W. 845, err.

FR a AE ete. Rey SP Oe ape CPR RNT Ne. Hae ate arr —

Ft. Worth & Denver Ry. Co., v. Williams, Sup. Ct.

Texas (1964) 375 S.W. 2 279 oct cccccsnsnennenee 48, 50

iv | _—_— List of Authoritice—(Continued)

Page

Ft. Worth & Denver Ry. Co. v. Yantis, 185 S.W. 969,

I asic catia asalidictsraphaenatbidducsiennieidchonlepecscienael Se 53

‘Fry Roofing Company v. Wood, 344 U.S. 157, 97 |

Si Rs TO, OOP I cnnrnceoreeenirionsorrencennitasnceengeconssen 8

- Gonzales v. Orsak, 205 S.W. 2d 793 (1947) (no writ) ........ 34

Goolsbee v. Texas & N. O. Railroad Company, :

(1951) 150 Tex. 528, 243 S.W. 2d 386.000... steed 19

Grayson v. Harris, 267 U.S. 352, 69 L. Ed. 652 .......... AS

Gulf Oil Corp. v. Walker, 288 S.W. 2d 173, (No

Guthrie v. Sinclair Refining Company, 320 S.W.

396 (1959) NRE, Cert. den., 4 Law Ed. 2d 120........... 35

Houston & T. C. Ry. Co. v. Ramsey, 97 S.W. 1067,

I 54

Houston E. & W. T. Ry. Co, v. Sherman, 42 S.W. 2d

ES eee 51

Hovey et al v. See et al, 191 S.W. 606, No writ ............. 43

Hupp et al v Hupp, 235 S.W. 2d 753, NRE ......0.00............. 420

In Re King’s Estate, 150 Tex. 662, 244 S.W. 2d 660 ....... 57

LaFrance v. New York, New Haven & Hartford

Railroad Co., 292 Fed. 2d 649 (1961) 220000000... 50

Little Rock Furniture Comparfy v. Dunn, (1949) 148 .

ce O_O forse 16

Lomax v. Marlow et al, 38'S.W. 228 (no writ) ................ 46

- Lone Star Gas Co. v. Thomas,'345 S.W. 2d 844 NRE ....... 53

Lubbering, Administratrix v. N. O. Ellison, Jr., 342

S.W. 2d 796 (No EE ee 42

McAllister v. Gardner, 373 S.W. 2d 316 (N.R.E.) ............. 16

McAllister v. Magnolia Petroleum Co., 319 8.W. 2d

. ciaiiearetieieine ESS Ee 49, 53

List of Authorities— (Continued) Vv

, ae _ - Pope

McAllister v. Magnolia Petroleum Company, 357

U.S. 221, TBS. Ch MDD ne ccecccceccceeecceeeeeestesseensenengneceen 26

McDonnell v. Timmerman, 269 Fed. 2d (1959) 8th

ERPS anette en ROR ieneercenny ae aie shee ccm 26

McLean v. Hargrove, 139 Tex. 236, 162 S.W. 2d

954, (1942) ........... Regine Notas ats MG ey cee eee Ee Oe 42

Maynard. v. Durham and Southern Ry. Co., 365 U.S.

160, 5 L. Ed 2d 486, 81 S. Ct. 561 (1961) ............ 9

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 5

L. Ed. 2d 20, 81 S. Ct. 6 (1960) ................ See ase is 9

Miller v. Norfolk Railway Company, (1954) 83

60 RI ee Horieeeermorsnee wee rerar ee oe

' Morris v. E. I. DuPont DeNemours & Co, 139 S.W..

Ce Semen Sereennnner in ror 49-50, 54

Mosby v. T & P Railway Co., 191 S.W. 2d 55 \ ote .

(100 WEIL) ones eeeeeese eh egessesscnenseeeseeenngnennnnnnnnneetecesssssseenecceteey 34

‘Neyland et al v. --Passano, COA. (1961) = S.W.

Gh BE, TOI cess pecs cies ses cSovsennessnssicns gp thseiblnadrasesnncincesens 20

Northwest Texas Motor Lines v. Hodges, 138 Tex.

2BD, 158 SIWs Dd ABE nese liicc ccc cccceeelaceactaseaeneeenetananeennene ‘17

Pace Corp. v. Jackson, 155 Tex. ‘179, 284 S.W. 2d ie.

BO CTI nies snsccsesecsssssnrgconsevesavenannsenssvabbscnneedonsessenacenss 18

Panhandle & S.F. Ry. Co. v - Haywood, 227 SW. .

Dd BET, OH. TOM aaa scscsvssessesnerecsntsnnsonssonscagennesntiinsencsedtons ae

Panhandle & Santa Fe Railway Company v. Walker, .

(1963) 364 S.W. bf Senne ayes 32

.Pipéline Workers Local No. 38 v. Zachry Company, +

ae eS |. Sa eae

Pittman v. Baladez, 158 Tex. 372, 312 S.W. 2d 210 |

MI sas sovccse Fa arated rh cratsanyateseng Sdotsestceassbungystearnge 2... 50

Portland Railway Light and Power Co. v. Railroad

Canoe «eer 397, aaa

vi. _ List of Authorities—(Continued)

| Page

Prudential Insurance Company of America v. Tate, .

* (1961) 162 Tex. 369, 347 S.W. 2d 556 o.oo... 18

Pruett v. First National Bank of Temple, 175 S.W. |

2d 648, (no writ) ........... b. eadsalencs nisi teasaoninaaceleaenltelsibaks 46

Richardson v. M. K. & T. Ry. Co. of Texas, 205 S.W.

. 2d 819, err. dism. (1947) ........... escuicuchansikenabramniie .. Ol, B

_ Robinson v. Gulf, Colorado & Santa Fe Railway Co.,

. (1959) 325 S.W. 2d 482, err. ref., cert. den., 80

Sup. Ct. 672, 362 U.S. 919, 4 Law Ed. 2d 789 ................ 37

Rogers v. Missouri Pacific Railroad Co., 352 US.

500, 1 L. Ed. 2d 498, 77'S. Ct. 443 oie Si ccccceecee. 8

St. Louis-San Francisco Ry. Co. v. King, Okla.

_ (1954) I I I ccs cailacedercescntorivassccnghsievicnnos moos 11

| San Antonio Light v. Moore, 101 S.W. 867, err. ref. —

Scott v. Isbrandtsen Co., Inc., 327 Fed. 2d 113,

I PI IN ics aasnsctictsectosnagits sansundiaaassageensiansvere . 25

Smith & Conklin Bros. et al v. Griffith et al, (1954),

153 Tex. 841, 268 S.W. 2d 124 0... ieee .. 18

Standard Motor Co. v. Blood, 380 S.W. 2d 651 (Tex.

oe SF | ERR rn net

Taylor v. Owen, 290 S.W. 2d 771, (1956) NRE ............... 45

Texas & N..O. Ry. Co. v. Pool, 263 S.W. 2d 582 —

REPRE OAD, SI Sen BLL ROO 21

Texas & Pacific Ry. Co. v. Snider,, 159 T380, $21

I ME I odisesshcdicestatoatigdacindae Oiag Matick Gan taseeincapiecscue: 21

Texas Bus Lines v. Whatley, 210 S.W. 2d 626, ‘NRE,

SI sos Sieess cock skosossssacde nem cncuaacsnaee ope aise pices a

Thomas v. Billingsley, 173 SW. 2d 199, (Err. ref.) .......... 15.

Thompson v. McAllen Federated Woman’s Build- a

ing Corp., 273 S.W. 2d.105, err. dism. ............6..::.0000000. 46.

‘Thompson v. Robins, 157 Tex. 463, 304 S.W. 2d 111

CRT sesstancusiisisian S aiaeleptine PREECE METS , 11,.13

List of Authorities— (Continued ) - vii

: oes Page

Travelers Ins. Co. v. Truitt, 280 Fed. 2d 784 (1960)

ic os vetscnccsuetchnnies a lea eden 26

Traywick v. Goodrich, (1963) 364 S.W. 2d 190 eae ees 24

Triangle Cab Company v. Taylor, 144 Tex. 569, 192

GW. 2d 148 on eeeeeesssssssessscnsssnsseennnnnnnsenecngeneecceeggesessenensnssen 20

‘Tripp v. Watson, 235 S.W. 2d 677, NRE (1950) lus cc ae

Vega v. Grieger, (1954), 264 S.W. 2d 498, reversed

on other grounds, 271 S.W. 2d 8 .............. Rpts a loan 29

Viduarri v. Bruni, 179 S.W. 2d 818 (ee. WOE) «......:.....:.. 30

| Barron & Holtzoff, Federal Practice & Procedure, .

DD CH TD oa icces ces sisscgecedpeetastnencspeecfvcengeasvinssconeenterec 26

Dead Man’s Statute, Art. 3716, R.CS. Texas ............ Al, 46

McCormick & Ray, Texas Law of Evidence, Vol. 2,

ee ee ee ce Al

McCormick & Ray, Vol. 2, ‘Texas Law of Evidence,

Pr DD ine cce Rss ccpscnonasontnsscesasensessscenccentnssnnart ligass ss ae

McCormick & Ray, Vol. 2 Texas Law of Evidence, |

Page B22. 0.2. cesseecsssecsseecteceesnecenseesnssesaessecsesscssnsssanecessceannessnes 54

- Revised Civil Statutes of Texas, Article 2189 ...........7...... 29

Tex: Const. Art. 5 Section 6 .................. “SIRE, SPT mente SPT 57

Texas Digest, Vol. 36A, Section 35 (5) ME oh causccpacs cae 21

5 Texas Law Review 149 (Page ON ee itices: EE ae 46

20 Texas Law Review, Section 32, Page 36 Srnceee Se eee 30

i Ti a ac ceasmsic toca rntapesneestenrncennclialoen 57

Texas Rules of Civil Procedure, 271-279 inch. .....:.......... 4,14 ©

Texas Rules of Civil Procedure, Rule 277 ............ 14, 29, 32

Texas Rules of Civil Procedure, Rules 434 and 503 See 37

US.C.A., Title 45 Sections 1-46 imch. .o..........0..00cc cece 3

USCA. Tile 46 Beckie: GA on... 5... cccsgil......... Raenceahste a 3

U.S.C.A., Title 46, Section 688 0.0.0.0... Petar Seon ca ". 35

In the .

Pe Court of the United States

i OCTOBER TERM 1965

No. 488 °

Mrs. ADELLE Huttu, Administratrix, :

| Petitioner,

Sr Lous SOUTHWESTERN RaIwaY Company,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO.

PETITION FOR WRIT OF CERTIORARI TO THE

~ COURT OF CIVIL APPEALS FOR THE TWELFTH .

SUPREME JUDICIAL DISTRICT OF TEXAS, >

| SITTING AT TYLER, TEXAS

COUNTER. STATEMENT OF QUESTIONS

| PRESENTED 7

“i, Will Respondent be denied the protection of the

Seventh Amendment to the United States Constitution? —

II. No federally created right under the Federal Em-

_ ployers’ Liability Act was denied Petitioner by refusing

- Petitioner’s requested Issues Numbers 1-A and 2-

quiring as to the negligence and proximate cause in

6°7;

“kicking cars on the occasion in question on a down-

grade”, because the Issues had been fully and fairly sub-

.mitted to the Jury in other Issues to which no as aainan

were made : by Petitioner.

_° IIL. No federally created right under the Federal Em- .

.ployers’ Liability Act was denied Petitioner by refusing

Petitioner’s requested Issues Numbers 3-A, 4-A and 5-A,

inquiring as to. whether Respondent was guilty of action-

able negligence in “kicking cars” without first determin-

ing that. J. T. Hullum was in a safe position aboard the

car he was riding, because the Issues had been fully and

fairly submitted to the Jury in other Issues to which no.

objections were made by Petitioner. ;

IV. The teil of Petitioner’ ~ Specially ee In- .

struction No. 2; reading as follows: |

“You are further instructed that the Defendant Rail-

road is under a continuing, non-delegable duty to

provide its employees, including the Plaintiff’s de-

cedent, J. T. Hullum, with a reasonable (sie) safe

; place within which to work.” »

was ‘not a denial ofa federally created right under the —

Federal Employers’ Liability Act because such an Instrue-

tion was not necessary to enable the jury to —_ upon the

Issues submitted.

V. The Trial Court’s submission to the Jury of an issue

on unavoidable accident and the Appellate Court’s refusal

_ to set aside the jury’s findings thereon did not deny to

- Petitioner any: federally created right. _ ;

a. Petitioner has not properly preserved alleged error

in regard to the submission of such Issue inas-

much as Petitioner objected only upon -the ground

that the same was a double submission of other

issues and enlarged her burden of proof.

b. If the point had been properly preserved, the sub-

mission of the Issue was proper because it placed

no onerous burden upon the Petitioner and, irias-

much as Petitioner did not procure a finding of

actionable negligence against — Respondent, the

finding of the jury on unavoidable accident i is im-

material.

-VI. No federally created. right w was deviled Petitioner by

admitting ‘into evidence (a) a conversation between Re-

spondent’s Engine Foreman, W. B. Bradley, and Petitioh-

er’s decedent, J. T. Hullum, and (b) ‘motion pictures

demonstrating to the Jury the type of “kicking opera-

tions” used in, the. Tyler Yards, because the evidence,

under Federal as well as Texas Court Decisions, is clearly

competent and admissible under the facts of this case.

VII. No federally created right was denied Petitioner

because there has been no improper judicial review by

the Appellate Courts below. |

7 _ COUNTER STATEMENT ze |

} “Having selected the forum of the Texas District Court,

’ Petitioner instituted | this suit against Respondent seeking

damages under the Federal Employers’ Liability Act’ for

the alleged wrongful death of her husband, J. T. Hullum.

: The Safety Appliance Act? is not here involved. Petitioner’s

1Title 45, Section 51, U.S.C.A.

?'Title 45, Sections 1-46, incl., U.S.C.A.

Decedent, J. T. Hullum, was a member of. Respondent’s

| ‘switching crew. He received an injury falling froyp a | boxcar

in the Tyler, Texas, Ward on December 13, 1961. It was

thought that he was making a good recovery, but suddenly

on January 8, 1962, he died, apparently from a blood clot.

(S.F. 295) Several acts of negligence were alleged; issues

. were fully joined by Respondent and the cause was tried

before a jury in October, 1963. The cause was*submitted to

the Jury upon Special Issues under the Texas practice and

procedure.* Petitioner did not object. to the Special Issue —

submission. By - its verdict, the J ury (a) absolved Re-

spondent of negligence; (b) absolved. Decedent Hullum of

any acts of contributory negligence, (c) found that Hullum’s

death was the result of an unavoidable accident, and (d)

found damages in ‘several sums to various ' “beneficiaries un-

der the Act. J udgment was ‘accordingly rendered for Re- ~

'.gpondent. The. Trial. Court carefully. submitted the cause,

defining the various terms in accordance with Federal de-

-cisional law under the Federal Employers’ Liability Act.

Although Petitioner fully presented all phases of the case

to the Jury, she failed to obtain a finding of actionable

negligence against Respondent. The Judgment of the Trial

Court was Affirmed by the Court of Civil Appeals for the

Twelfth Supreme Judicial District sitting at Tyler, Texas,

and Writ of Error has been by the Supreme Court of Texas

Refused, with the notation, “No Reversible Error.” In her ,

Petition for Certiorari, Petitioner now asks this Honorable

Court to disregard the fact findings made by the lawfully

constituted fact: finder and to substitute its views in the —

~* Rules 271-279, incl., Texas Rules of Civil Procedure ~

_. way Petitioner claims the Jury should have found the facts.

Petitioner prays this Court 1 to upset. this Jury verdict on

the ever-elusive and nebulous contention that because the

Jury did not give credence to her theory of the case, she was

denied some “federally created” right. The Petitioner, inso-

far as is discernable to us, does not make clear the “federally

created” right or rights she was denied. This brings us to

remark that we cannot accept the unnecessarily verbose _

“review” of the evidence by. Petitioner, appearing at Pages

10-16 of the Petition for Certiorari because only a portion |

thereof—slanted to her. view—is mentioned. For instance,

at Page’ 11 of said Petition it-is stated that “Switchman

+ Strother saw this happen, and is the only eye witness to the

event.” Petitioner does not mention that Witness Strother

gave two different versions of the occurrence and his credi-

bility before the Jury was totally destroyed. (Cf. wes, ae: -

with S.F. 454-465.) An abundance of evidence was

by Respondent: showing an-absence of any negligence on the

part of Respondent or any member of Respondent’s switch-'

ing crew. We regret the length to which we are put in order

to reply | to the Petition, but deem it appropriate to demon-

‘strate that the record amply supports and, ih fact; almost

compels the. jury verdict. |

The record discloses that Engine Vesiasisin Bradley testi- a

- fied that J. T. Hullum aligned the proper switch and crossed’””

to the opposite side of the track and was lost from his~

view when the boxcars were pushed between him and Mr.

_ Hullum; that when he last saw J. T. Hullum, the latter was

in the proper position to ride the cut of cars and set the

sR Sep pe Oe 7

this particular portion of the switching operation. (S.F.

334-336, and '842-344)Crew member Strother testified that

he saw J. T. Hullum during the-entire portion of the switch-

ing operation in question up to and ‘including the time

of the accident. (S.F. 69-71 and 74-75) The record is void .

of any testimony to the effect that any member of the crew

failed to keep Hullum in view at a time when ordinary -

ee Rat hee eX peciies fe

actually see J. T. Hullum. :?

_ Witnesses Bradley and G. H. Bivens-cach testified tat

| the cars were moving at only four to six miles per hour, f

which they considered a safe speed, taking“into account the

existing conditions on the occasion in question. (S.F. 154-156,

188-190, 199-210, 346-347, and 392) Bradley further testified .

that “kicking” the cars was not unusual, but was a customary

practice in the Tyler Yard. (S.F. 204-207). Bradley testified,

and Strother agreed, that’ the cars in question were. not

. kicked harder than they should have been. Each testified

' that the “kick” in question was an ordinary one and was

“Not too hard”. (S.F. 86 and 204-207) Witness Strother

further testified that, prior to the accident, Hullum had

positioned himself on top of the car. (S.F, 70-71) There was

no direct evidence that any member of the switching crew

was furnished an unsafe place in which to work. All of the

_ members of, the switching crew agreed that at the time of

the accident they were performing a normal switching opera- a

tion. (S.F., 160-161) The absence of negligence is further

corroborated by the very case history given by J. T. Hullum —

soveral days after the accident, which history was recorded

| by his physician as follows: “He was on top of a-car @hov-

ing) trying to get, from that car to the next. Then lost his

- balance. Fell between the two cars on the gréund and ap-

parently he was dragged for some distance before the cars

came to a stop.” (S.F. 469.)- Equally important is the —

admission by J. T. Hullum to Witness Bradley that he “did

| not hold: any member of the crew responsible for the ac-

cident.” (S.F. 209) This Honorable Court’s attention is .

particularly directed to Bradley’s testimony found at Pages:

318-351 of the Statement of Facts. .

<- With reference to Petitioner’s iin that Hollum was

under the influence of dope at the time he gave his above

mentioned case. history, we need only to refer this Court

| to the testimony of the admitting physician, Dr. Dimitri

‘Boosalis,. whose deposition’ was taken and offered into

evidence by Petitioner. According to Dr. Boosalis, at the

time the patient entered the Texarkana Hospital {which was

_ geveral days after the accident) the patient “was not in

distress. * * * He was fully conscicus, alert, and able to -

move his left arm and both his legs.” (S.F. 262) ©

ARGUMENT ua

I. Will. Respondent be denied the protection of the

- Seventh Amendment to the United States Constitution? _

It is apparent’ that the Petition for Certiorari is simply

, an appeal by a litigant to a Higher Court to save her from

an. adverse jury verdict. As has been demonstrated, the

> evidence was —_ presented in the — Court ond Re-

sptitankcone bythe j-VindipataPia lacie at magi

gence. Surely, Respondent is entitled to- the ‘protestion in-

'. cident to a trial by. jury, as pr@vided for in ‘the: Federal

‘Employers’ Liability Act and as guaranteed by the Seventh |

Amendment. The jury did. not find any negligence against

Respondent but Petitioner now asks this Court to substitute

its views for those of thedury and hold to the contrary. This -

, Honorable Court has held many times: that the’ findings of a

State Court will be accepted ‘by it where, though the: evi-

'. dence is conflicting, they are not without factual foundation.

__ Fry Roofing Company v. Wood, 344 U.S. 157, 97 L. Ed. 168,

73 S. Ct. 204; Portland Railway Light and Power Co. v.

, Railroad Commissioner of Oregon, 229°U.S. 397, 57 L. Ed.

1248; and Grayson v. ‘Harris, 267 U.S. 352, 69 L. Ed. 652.

‘ Petitioner is asking this Honorable Court: to ignore its

rules for testing verdicts in Féderal Employers’ Liability

Act cases. Rogers v. Missouri Pacific Railroad Co.,-352 U.S.

500, 1 L. Ed. 2d 493, hee Ct. 445. shock sare catered

stated. as follows:

“Under this statute the test of a jury case’ is ae

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, in-

... Gluding the employees contributory negligence. Judicial

appraisal of the proofs to determine whether a jury

peas is presented is narrowly limited to the single

- inquiry whether, with reason, the conclusion may be

drawn that negligence ofthe employer played any par ee

it sll th She Seiya

ne: ntgmnParntictenebeaatesioncetsens

___ i:

“The Cumin when adopting’ the law's was particsilarly

‘concerned that the issues whether there was employer

fault and whether that fault played any part in the in- a

jury or death of the employee should be decided by the

jury whenever fair minded men could reach.these con-

chisions on the evidence. * ** * Congress corrected . ~ }

“(court made theories which defeated employee’ claims x

as a matter of law) by the 1939 amendments and re. ere

‘moved the fetters.which hobbled the full play of the _

basic Congressional intention to leave.to the fact-find- :

ing function of the jury the decision of the primary | ae

‘question raised in these cases—whether employer fault =o 9 |

played any part,in the employee’s mishap. " prt i :

“The decisions of this Court after the 1939 amend-

ment teach that the Congress vested the power of. de-

cision in these actions exclusively in the j jury in-all but

the infrequent cases where fair-minded jurors cannot: e

honestly differ whether. fault. of the employer played

any part in the employee’s injury.”

| Petitioner apparently regards the Resat case as a holding

that the’ Jury must find the Railroad negligent regardless |

ofthe credibility of ,witnesses, If the Jury does not find |

negligence, Petitioner would have the Appellate Court find. a

entirely contrary to the jury finding absolving-the-Railroad—

of actionable negligence. See also Maynard v. Durham and -

Southern Ry.’ Co., 365 U.S. 160, 5 L. Ed. 2d 486, 81 S. Ct.-

561 (1961) and Michalic v. Cleveland Tankers, Anc., 364

U.S. 325, 5 L. Ed. 2d 20; 81 S. Ct. 6 (1960).

Ht ie abaiell in. Athualie & Gulf Bisosdonte « Ellerman

Lines, 369 U.S. 355, 7 L. Ed. 2d 798, 82 S..Ct. 780, that the

Supreme Court cannot “redetermine facts found by the

Jury,” and further, “where there is a view of the case that

makes the jury’s answers to the Special Interrogatories con-

_ sistent, they must be resolved that way. For a search for one _

ee ete ee

| Sl iG cn hi Wi sik ial

inconsistent, results in a collision with the Seventh Amend:

“ment.’*Respondent, as well as Petitioner, is entitled, to the

protection incident to a jury trial es guaranteed by the |

“Seventh Amendment. : mee a Y

Il. No federally created ae under the Federal Em-

ployers’ Liability Act was denied Petitioner by refusing -

Petitioner’s requested Issues Numbers. 1-A and 2-A, in-\

quiring as to the negligence ang proximate cause fn Me

“kicking cars on the occasion in question on a down-.

grade”, because the Issues had been fully and fairly sub- -

mitted to the Jury in other Issues to which no objections |

were made by. Petitioner. ° ;

iil. No federally ainiau right under the Federal Em-

ployers’ Liability Act was denied Petitioner by refusing

Petitioner’s requested Issues Numbers 3-A, 4-A and 5-A,

| inquiring as to whether Respondent was guilty of action-

~ able nasilennee in “kicking cars” without first determin-

ing that J. T- Hullum was in a safe position aboard the

car he was riding, because the Issues had been fully and

fairly submitted 'to the Jury in other Issues to which no 2

objections were made by Petitioner. ,

Although it is held in the case of Brown v. Western Ry. of ——

Alabama; $38-U.S; 294, 94 L. Ed. 100, 70 S. Ct. 105 (1949) .

‘that federal rights cannot be defeated by the form of local

practice—a holding with which we agree—the rule is equal-

ly well settled that in actions brought under the Federal

ene ene 2p epeiien et pentice ent rrccere

_ created rights are. preserved. In the'case at bar there has

~ there is'no conflict between the submission of the ease in the

are governed by State laws. Batton v. Atlantic Coast. Line

Ry. Co:, 193 S.E, 674, Cert. Den., vest 651, 82 L. Ed.

1112, 58 S.Ct. 750. The matters of a ity of evidence,*

-. gubmigsion: of special issues,° examination 0 witnesses, the.

Court’s charge,’ and other matters of procedure and practice, °

‘the State Court’s rules obtaift. There is no suggestion in the :

Act that, if Petitioner selects the State Court to enforce ‘her

substantive rights, the State Court may not submit the case

. in accordance with its practice and procedure if the federally.

Md sdb tec AAO LG RE BS Fpl Who EINE Ieee’ mee

been no subversion: of federal rights as established by the

Federal Employers’ Liability Act. The record does riot. show

that the local procedure followed has deprived Petitioner . |

of a federally created right. The basis of het contention See |

- of such deprivation is that by the Court’s failure to submit we =

the issue requested, she failed to obtain a federal right ac- 7. ey

corded here by the Act. Such contention is unsound because | ae

Texas Court under its procedural rules and those’ which og.

would have obtained ini a Federal Court. She was entitled 9

to a jury determination of the ultimate. issues plead and

_ raised by the evidence. This is exactly what she obtained

__ under the local procedure,-and there are ‘no over-exatting

~ local requirements in the case at’ bar.

Petitioner ollegsd ‘ichioualibs-ishgligesice-aqhlaat Fenpensd:

: ent in seveh respects. (Tr. * However, reduced to con- .

: >. St, Louis San Francisco’ Ry. Co. v. King, Okla. - (1954): 278

‘Thompson v. Robbins, 157 Tex. 468, 304 S.W. 2d 111

‘* Atlanta Joint’ Term v. Knight, Ga. (1958). 106 2d 417

* Miller v. Norfolk Railway Company (1954) 83 SE. 2d 533 .

trolling ultimate ‘issues, Petitioner's claim was based upon’ __

_ Respondent's (ay failure to provide Petitioner's decedent

a safe place in which to work and’ (b) failure to keep a

proper lookout for Petitioner's decedent during a switching

(kicking) operation. No other acts of negligence are alleged

= against Respondent. The Trial Court submitted to the juty:

: five primary issues of negligence... (Tr. 40-42) Omitting sub-

-sidiary issues, the Court submitted. thé following issues re- |

' vacate ela 1 negligence: = |

'_€@1) Failure ‘to to keep a Proper lookout,

a Wcities sled Alay dk us Actuation sit ,

‘speed during the kicking opgration, |

ae ) Kicking the cars on the occasion in question,

(4) Kicking the cars harder than would have been ‘ ‘i

_ kicked by ordinary prudent persons in the exercise

| of ordinary L wag under a emai similar cir-

cumstances; and:/ . 5> wear

reasonably safe place in which to work.

Appropriate definitions and explanatory instructions, to which

no objection has been made, were given by the Trial Court. .

The jury failed to find any of the primary thegligence issues me

in Petitioner’s favor. The jury found that neither Petitioner’s

‘decedent nor Respondent was guilty of negligence on’the

; occasion in question. Petitioners complaint is that the Court,

in ation tothe imo eed, shoud hive, given ad

' ditional issues as follows:

- (1) Was it negligence to kick the-cars on down grade?

(2) Was Respondent’s crew negligent in- -kicking the

~~ cars without first determining that J. T. Hulluni

> ee n which

he was rising? |

In Thompson v. ‘Robiad, 157 Tex. 463, S.W. 2d 111

(1957) in discussing the submission, of issues in a

~ Court eied as follows, at page 116 of the opinion:

“Defendant agrees that this being a railroad employee —

was applicable. This being its position, it

contends that the Federal Employers Liability

Act 45 USCA, supra, merely prescribes the substan-

tive rights of the parties, and that ‘all Federal Employ-

ers Liability Act cases are to be tried in accordance with

nal i jury .case, contributory negligence was no

a: t contends that the principle of comparative

‘our own Rules of Civil Procedure and not the Federal

Civil Rules, 28 U.S.C.A. The Federal Employers: Lia-

bility Act, 45 U.S.C.A., supra, as ‘well as the Texas Act,

Art. 6440, Vernon’s Annotated Civil Statutes, both spe-

cifically provide that the fact that the employee may

have been guilty of contributory negligence shall. not

bar a recovery, but the damages shall be diminished

by the’ jury in proportion to the amount of negligence

attributable to such employee. We agree with the De-

fendant that the Texas Rules of Civil Procedure con-

. trol. The Plaintiff invoked the jurisdiction of the State

Oe ee ee

for damages is tried in the State Courts so far as pro-

Ce Eee On ee: 3

pore

a ee ak Ni

Petitioner does not deny that the Texas Rules of Civil

. ‘

OE penn —p— oo , , me = .

eo - .

é é Ba raat 3° i : i ii. his ae ;

Hi HIP: if: a Lee “

basil uy bay i} atid fl s

TUE I: § fil ve 5 aay 2

E 35. 4a: §. , 3 akg Ht eal -

HT hae He i i Hk

nha At fd al iF Ht fasa284 nay :

by the. pleading and the evidence,.the failure to submit —

. other and various phases or different shades of the same issue

) does not present revefsible error. Since the promulgation of —

_ the Texas Rules of Civil Procedure in 1941, the Appellate

Courts of this State have admonished Trial Courts to submit

to the jury, especially in negligence cases, only the control-

“+ ling issues ‘and not to. fragmentize and submit different

_, Shades and phases of the-same Ultimate issues. An unneces- :

. sary ‘splitting of an issue was one of the evils sought to,be

corrected by the Texas Rules wey a Procedure.

The-cases clearly hold that Courts are not re--

quired to submit requested which are substantially -

Billingsley, 173 S.W. 2d 199, (Err. ref.) Thus, it is held

that the Trial Court ‘is given much discretion in framing -

and submitting the controlling issues. Dollie Adams Oil

Corp. v. Cree, 279 S.W. 2d 619 (No writ.). ,

In the case of Dailas Railway & Terminal Company v.

_ Straughan; 254 S.W. 2d 882, no writ history, the Court of

- Civil Appeals held that it was not error to submit as con-

_ tril t ; eli . in an t t ile id t is ‘in

quiring if the appellee was negligent in failing te apply

the brakes of his automobile quicker than he actually did —

and if his failure to turn his automobile to the left imme-

diatély prior to. the collision was negligence. In the case

the Court submitted issues inquiring as to whether Ap-

., pellee failed to keep ‘a proper lookout and whether “he was

driving at-excessive rate of speed under the existing. cir- a

a TA AE ESE ee

aaa eae

. - additional requested issues, the Court states that the trial

court is not required to submit issues that are merely evi-

' ‘dentiary or unnecessary and’ that it is never’ required to ;

- ‘submit various phases or different s of material issues |

submitted. The Court held that the ” . Court shad. sub-

- mitted the “controlling issues ” raised Ahe pleadings ‘and :

the evidence. To the same effect, see Gulf Oil Corp. v.

Walker, 288 S.W. 2d 173, (No writ); ‘McAllister v. Gardner, .

> 83 S.W. 2d 316 (NRE).

‘tn City of Fort Worth 0. on (1945) 143.'Tex. 551, 186 -

S.W, 2d 954, there was an action by the Guardian of a minor _

> who was. injured. when lijp. bicycle wes diiven off of the

roadway and ‘fell into.a raitroad cut. One: of the defendants $

an issue inquiring whether it’the exercise of ordi-

i nary care for his own safety, Victor Atkins should have have

discovered that he was off of the traveled portion of the

‘street in time to have stopped his bicycle before going

into ‘the extavation. The Supreme Court held that, the re- |

fusel of this issue was not error in view of the fact that

the Trial Court did submit an issue inquiring as to whether _

Victor Atkins “after he rode his bicycle “off of the traveled,

portion of the street, was negligent, as that term has been .

defined to you, in failing,to stop his bicycle just prior to the

accident .in question.” The requested issue was ° merely a,

phabe or different shade of the issue submitted. Two submis-

sions of the same issue are never required. Little Rock Fur-

niture Company v. sree (1940) 145 Tex. 197, 222 S.W. 2d. -

- 986.

es, Pasa

el eee eeesineeenoeiomegnseresomeh

ra)

a ‘iieetieaa Texas Moior Lines v. Hodges, 138 Tex.

\ 280, 158 S.W. 2d 487, the Supreme Court holds that certain

‘were encompassed in other: issues ‘sibmitted by: the Court.

_ -The petitioner cofnplained because the Trial Court, upon _

Proper request, refused to submit the question as to whether

"immediately prior to the collision, Hodges was operating his

‘truck at such rate of speed that he could not stop, it within

“the rangé of his vidion. In another requested special. issue

‘» the same-inquired as to whether immediately prior to the —

| collision Hodges failed to reduce the speed of his truck.

2 when meeting an’ automobile with blinding lights, approach-

ing from the opposite direction. The Court held that the

- requested special issues related solely to the manner of

Hodges’ operation’ of his truck immediately -prior .to the

’ collision — one, whether he was: so operating it that -he

could not stop it within his range of vision, the other whether

he failed: to reduce his speed upon meeting the car with

blinding lights: The Court states at Page 489: _

and complicate special issue charges by requiring

Trial Courts to give issues that nh submit vari-

ous phases or other shades of | ing of an issue

already im the charge. It is required only that each

controlling issue raised by the : ings and the evi-

The Court held that the Trial Court, having submitted the

question as to whether or not Hodges had his vehicle under

“proper tontrol” included the subject matter of the refused

Seweehetl ero a > ee

rstyuasted special lasuss. ‘This case is directly in\ point with

the one at bar. See also Smith & Conklin Bros. et al v.

. Griffith et al, (1954), 153 Tex. 341, 268 S.W. 2d 124, wherein

the Supreme Court of Texas again affirms the law that where

the Court has fairly submitted the controlling issues: raised

‘by the: pleadings and the evidence, it is not error to refuse

to submit other requested special issues relating only to

various shades of the issues submitted.

In Pace Corp. v. Jackson, 155 Tex. 179, 284 SW. 2d 340,

(1955) the Supreme Court held that where an issue had been

- failed and refused to Jackson with cigarettes for his

. submit an issue inquiring W. petitioners offered to sup-

ply cigarettes for the vending machine business. The Court

held that one of the issues covered the other and the re-

quested issue was merely a phase or shade of the other issue.

. In Prudential Insurance Company of America v. Tate,

(1961) 162 Tex. 369, 347 S.W. 2d 566, the Court states at

Page 559 as follows:

Rule 219 Tess Rules of Civil Procedure.” |

It was held in Pipeline-Workers Local No. 38 v. Zachry

Company, 276 S.W. 2d 876, NRE, that a refusal on the part

- of the Trial Court to submit a requested issue, the subject

—~<<=—-

matter of which was adeustaly covered by other ies sub

: mitted, wap not error.

In Cunningham et ux v. John Suggs, C.C.A. (1960) | 340

S.W. 2d 369, NRE,,. the Court had submitted an issue as

to whether Suggs stopped his automobile upon the paved -

- or main traveled part of the highway when it was “possible”

to stop said vehicle off of the highway. . The issue was an-

swered favorably to Suggs. Appellant Cunningham com- .

plained because the Trial Court refused to submit to the

jury requested special issues inquiring whether Suggs failed

to drive his automobile completely off the paved portion of

_the highway, whether he could have, but failed to, drive his

automobile onto the North shoulder of the highway, whether

he could have, but failed to, drive his automobile onto the

South shoulder of the highway, whether he stopped his ..

automobile in such a position that it: blocked the portion ‘

of the highway used by the traveling: public, and whether

he stopped his automobile upon the paved portion of the

highway without leaving an unobstructed width of the high-

way for free passage of other vehicles thereon. The Court.

held that the matters inquired about in the requested spe-

cial issues were phases and shades of and were covered by the >”

_ issues which the Trial Court had submitted. The Court held —

| there was no error in refusing the requested special issues.

In Goolsbee v. Texas & N. O. Railway Company; (1951)

150 Tex. 528, 243 S.W. 2d 386, the complaint Was made that

_ issues inquiring as to whether Goolsbee had such apprehen-

sion as to lose his power to act voluntarily and deliberately

NADINE AES te He AN a See Na ‘

sis Si tagig ia Gin eich Gotaben in foi

ing from his engine was a voluntary one. The Court held

this was not error because the subject matter of the re-

quested special issues had been submitted in another issue

inquiring whether Goolsbee had acted in an emergency on

| the occasion.

- In Neyland et al v. Passano, C.C.A. (1961) 352 aw. 2d

367, NRE, the Court had submitted an issue as t6 whether

a driver whose automobile struck a small child failed to

apply brakes properly. In addition to this issue the Appellant

- requested an isstie as to whether the driver had failed to

slacken the speed of the: automobile being driven by. her.

The Court held that the tefusal of the Trial Court to sub-

mit such an issue was not error because the controlling ulti-

mate issue had been submitted, and that the Trial Court was _

en ee OP ie

- issue, citing Rule 279, T.R.CP. 5 y

To thie” same effect, see Blaugrund v. Gish, 142 Tex. 379,

179-S.W. 2d 266; Triangle Cab Company v. Taylor, 144 Tex.

569, 192 S.W. 2d 143; Dallas Railway & Terminal Company

v. Strickland Transportation -Company, .C.C.A., 225 S.W.

2d 901, (No writ). In the last case cited the Trial Court. was

requested to submit a special issue inquiring as to whether

~ the driver of Appellee’s truck ‘failed to slow down before

entering the intersection at the time and on the occasion

in question.-The Trial Court had submitted an issue as to

whether the truck driver fsled to check hie speed as he ap-

- ——

— +> -

eee eran

increased the speed of his truck as he attempted to cross the

intersection. The Court held that thete was no error in

refusing Appellant’s requested issue inasmuch as the issues

submitted covered substantially the same questions involved

in the requested special issue.

See also Camco Inc. v. Evans, 377 S.W. 24 703, (Tex. Giv.

App., 1963, Ref. NRE); nyc’ tert Co. v. Snider,

159 'T380, 321 S.W. 2d 280. |

In the Case of Texas & N. O. Ry. Co. v. Pool, 263 S.W.

2d 582 (No writ), an F.E.L.A. case, the whole basis of the .

Plaintiffs complaint was that the Defendant was negligent

in permitting oil and grease to accumulate upon the end

of a cross tie. Although this constituted only one ultimate

ground of recovery, the trial court submitted various issues,

many of them. evidentiary, relating to the negligence of the _ oe eae

defendant railroad carrier in permitting the cross tie to be-

come covered with grease. The Court of Civil Appeals held

this was error, constituted a multiple submission of Plaintiff's

theory of recovery. The case was reversed because of such

multiple submission of one ultimate ground of recovery. See

also Crowell-Gifford Furniture Company v. Cloutman, C.C.A.

276 S.W. 2d 539, N.R.E. Many other authorities to the same

. effect are collated in Vol. 36A, Texus Digest, Section 35 (5)

controlling issues raised by Petitioner’s pleading and the

_ evidence? Were the requested issues of the Petitioner mere

' phases or different shades of the issues that had been fairly,

ee ee

In the case at bar did the Trial Court fairly submit the

ns @

nt nnneeteneineneanene=eaentenaene eememiaees meee

. é } ° -

ae Ae ES re

ethan Cit tenia ecieanis iin tenure:

“imate cause, the Petitioner requsted. the Tal Court to

| submit the additional issues: ;

| Sh Ds joe hel bes ea Ee

dence that kicking of the cars on the occasion in ques- .

tion on a downgrade was negligence?” and

“8A. Do-you find from a preponderance of the evi-

dence that the defendant's crew on the occasion in

It is clearly shown by the record that both the above re

quested iaoues were cléerly covered in other issues submitted |

by the Trial Court. 3

With relerence to the “kicking” operation, the following

special issues were submitted:

“ttn abies that: th above thrws specie) invaes relating

to the ‘manner of the kicking opération’ substantially cov- _

_ ered the requested special issues as to whether the kicking

of the cars on the occasion in- question ona downgrade

. was negligence. It was undisputed, and: the evidence from _

all the witnesses indicated, that’ the Tyler Yards are‘on a

slight downgrade. No point or isme was made as to whether

| ence to the ‘marmer of the kicking of the cars, gave the.

me Petitioner three “bites at the apple”, namely, whether the

kicked too hard,’and the global submission of Special Issue

No. 5 as to whether the kicking of the cars on the occasion

in question was negligence. (Tr. 41) It occursto us that if

the Court had submitted no issue other than Special Issue

No. 5, the Petitioner would have no complaint here. Cer-

tainly, suchwas a global submission, completely covering

generally the manner in which the cars were being kicked

on the occasion in question. It is obvious from a mere reading

of the requested issues that the subject matter of the re-

quested issues was covered in the issues submitted.

With reference to the requested issue of Petitioner as

to whether the defendant’s crew on the occasion in ques -

tion, kicked the cars in question without first determin-

ing that J. T. Hullum was in a safe position aboard the

car he was riding, the Trial Court did submit a special

issue inquiring as to whether the other members of de-

fendant’s switching crew failed, to keep a ‘proper lookout

for J.T. Hullum ‘on the Occasion in question. (Special

RAPT S44

1 SF eae 2, sax 4 a

pany esas Madan lg PANN ik le Sat eg AM cin elds eens pe tng ota

, °

: 24

Issue No. 1—Tr. 40) Accompanying this issue was a dofiti- 3

tion of the term “proper lookout”, which was hot ob-

" jected to by Petitioner. In addition, the Trial Court sub-

titted Special Issue No. 9 inquiring as, to whether, on the —

nin question, the Defendant failed to provide J. T.

H with a reasonably safe place in which to work.

ee ee a ee

objection from Petitioner. (Tr. 42) Therefore, the requested

- Special Issue No. 3A of which complaint is here made, was |

nothing more than a lookout issue which had been more or

less globally submitted in Special Issue No. 1 aforesaid.

It might be pointed out that Special Issue No._1 encom-

passed. the lookout of every member of defendant’s switch-

ing crew other-than J. T. Hullum. Therefore, it occurs to

us that Petitioner is requesting only that other phases

and different shades of thé same ultimate grounds of re-

"covery be submitted. The two main grounds of re-

covery here were, first, whether the defendant’s crew kept

a proper lookout for J. T. Hullum’s safety during the kicking

operation and, second, whether the manner of the kicking of

the cars on the occasion in question was negligence. These

were amply covered by the issues submitted and we submit

that it would have been error for the Court to have further

_ fragmentized these issues. The Supreme Court of Texas, in

Traywick v. Goodrich, (1963) 364 S.W. 2d 190, held spe-

cifically that the issue of lookout should not be fragmentized.

One issue in that case inquired as to whether Mrs. Etheridge

_ failed to maintain a proper lookout.’ The Trial Court’ sub-_

‘ Maitted another issue inquiring as to whether Mrs. Etheridge

failed to ascertain or determine that the way was clear.for

her ater. he: Aitemactlon belate doings The Court

ee |

held that the second issue. should not have been submitted

as it was necessary to submit only one issue on proper _

lookout. . We have the same situation now before this Court.

The Trial Court having submitted properly, without ob-

jection, an-issue as.to whether the defendant’s crew main-

tained a proper lookout for J. T. Hullum, it was not re-

| quired to submit another phase or different ‘shade of the

same issue by inquiring as to whether the defendant’s crew

kicked the cars in question without first determining that

J.T. Hullum was in a safe position aboard the car he was

riding. If Defendant's crew failed to keep a proper lookout,

it certainly failed to first determine that J. T. Hullum was.

in a safe position aboard the car he was riding before they

kicked the cars. Moreover, it can be fairly said that the issue

was covered also in Special Issue No. 5 submitted by the

would have been submitted to the jury under Rule 49,

_- Federak Rules of Civil Procedure. In such event the Trial

Court would have broad discretion as to the manner in

which the Interrogatories were submitted.. DeEugenio v.

Allis-Chalmers Mfg. Co., 210 Fed. 2d 409; R. H. Baker &-

Co. v. Smith-Blair; 331 Fed 2d 506, 9th Cir. (1964); Em-

ployers Mutual Casualty Company v. Johnson, 210 Fed.:2d

~ 188, 5th Cir. As stated in Scott v, Isbrandtsen Co., Inc.,

327 Fed. 2d 113, (1964) 4th Cir., “A Federal Court has

" discretion in the use of special verdicts and this discretion :

is not limited to the decision with respect to such use but

extends beyond to the form of the submitted interrogatories

If this cause had been tried in a Federal District Court, it.

vansers (Wee a oe —

Se KZore MaRS SRR St |

a IRS Je 5 oe ROR ERM SS ule RAE

ence such deciaion is made.” ‘To the same effect, McDonnell

v, Timmerman, 260 Fed. 2d 54, (1959) 8th Cir; Travelers

"\ Ine. Co. v. Truitt, 280 Fed..2d 784 (1960) 5th Cir. ‘Where

_ the Court does. determine to use special verdicts or written

interrogatories to accompany a general verdict, it~has a

similar’ discretion as to the nature, scope and form of the

questions to be put to the jury.” 2B, Barron & Holtzoff,

Federal Practice & Procedure. (Page 337)

. It follows that, under the Texas’ procedure, Petitioner oe

probably obtained the submission of more issues than she

- would haye obtained under the Federal Rules had the case —

"been tried in the Federal District Court. The Trial Court

"gave her a fair submission of every ulfimate ground of re-

covery and Petitioner has shown no deprivation of federal

rights in the manner of submission.

At Page 24 of the Petition, the case of Arnold v. Pan-

handle and Santa Fe Ry Co., 353 U.S. 360, 1-Law Ed. 2d

$89, 77 Sup. Ct. 840 (1957) is cited. The Court held in

that case merely that certain specific findings of a jury did.

not necessarily conflict with the jury’s finding of actionable

‘Begligence against the Railroad and that the Petitioner

had shown negligence against the carrier, That question is

" ‘not :involved in the case at bar because Respondent has been

‘exonerated by all findings ofthe jury. Petitioner did not

obtain favorable findings, either specific or. general, as to

_ primary negligence on. the part ‘of the Respondent. |

2 At Page 25 of the Petition, there is cited the case of —

McAlister v. Magnolia Petroleum Company, 357 U.S. 221,

| 7 S. Ct. 1201, which case held merely that a State Court -

may not: apply its two year statute of limitation to bar an

unseaworthiness action that is joined with an action for

negligence under the Jones Act. This case ikewisé has -

| nothing to do with Petitioner’s contentions in the case at bar. 3

Finally, Petitioner cites the case of Bailey v. Central Ver-

: mont Ry. Co.,'819 US. 350, 87 Law Ed. 1444, 63 S. Ct. 1062.

_’ preme Court.of Vermont, which had set aside a jury verdict -

for the Plaintiff. . The case holds that the jury. verdict for the

plaintiff wes supported by suficient evidence, That situa- .

tion does not exist in the case at bar. .

Petitioner has cited to the Court ‘no case holding that a :

failure to fragmentize special issues in a case tried in

State Court is a denial of any federally created right under

the Federal Employers’ Liability Act. We suggest that Pe-

oe an Ol a ee

IV. The refusal of Petitoner's Specially Requested i

struction No. 2, reading as follows:

“You are further instructed that the Defendant Rail-

road is under a continuing, non-delegable duty to

"provide its employees, including the Piaintiff’s de-

eedent, J.. eee

place within which to work.” __.

a cas: slin'a diibtal Gt 0 tadlilhy cclmebcunabi aia es |

Federal Employers’ Liability Act because such an Instruc-_

ee ae ee ee

Issues submitted. s

Petitioner alleged in the Amended Petition ides’ 5

semaines cease iimennier erin

occasion in question to furnish the decedent, J. T. Hullum,

with a safe.place in which to work”. (Tr. 10) The Trial —

Court submitted to the jury, without objection by. Peti-

tioner, an issue coveritig such allegation, together with a

definition of the terms used therein:’ (Tr. 42)

- Petitioner requested of the Trial Court the additional

instruction contained in specially requested: Instruction

No, 2, as follows: “You are further instructed that the

defendant railroad is under a’continuing non-delegable duty

te vrovide its employees, including the plaintiff's decedent,

oe Ee Hullum, with a reasonable safe piece in which to .

. work,”

There was no evident presented that on the day of the

| injury to J. T. Hullum there had been any change in the

- instrumentalities with which the switching crew performed

: their. duties or in the location of the plate where the work

was performed or in the personnel composing the crew

of which the detedent was a member. Moreover, there is

no evidence in the record of the. -presence of*any. party or

person other than the switching grew members, and there

is. no evidence that, the injury was caused. -by any act or

otiission of a third’ party disassociated from the’ crew.

re -“*_ SPECIAL ISSUE NO. 9

“Do you find from a preponderance of the evidence that on ~

. the’ occasion. in question, December 13, 1961, the defendant

failed. to provide J. T. Hullum, deceased, wi with a reasonably _

safe place in which to work? .

~ “You are. instructed that by the term ‘reasonably safe

place in which to work’, as used herein; ig meant such a

lace with regard to safety of its ne an as would. be

ed by an ordinary prudent employer in-the exercise _

Rule : 277, Texas Rules of- Civil Procedure, was ssitinais

gated in 1941, and was taken from Article 2189, Revised

a Civil Statutes of Texas. The relevant part of the Rule reads:

* “In submitting Special. Issues, the Court shall submit:

_ such explanatory instruction and. such definitions of

_ legal terms as shall be necessary to enable the jury to

Rae re ee eee

sues. * * *’

_. The Rule also added to the language of the Statute, the .

following clause, “and .in such instances the charge shall —

not be subject to: the objection that it: is a general

charge.” It is clear, therefore, that the effect of the changes

- in the Rule would permit, where required, explanatory in-

- structions without the same being objectionable as general

» charges. The Rule does not authorize and has never been

construed as authorizing a general charge to the jury as

distinguished from special issue submission. As stated in

Vega v. Grieger, (1954), 264 S.W. 2a 498, reversed on other

grounds, 271 S.W. 2d 85, “Rule 277, supra, authorizes the

| submission of the cause on special issues and in instances

on a general charge, but it does not authorize such sub- aa

' mission on both methods at the same time.”

It is likewise clear. that general instructions are never

permitted unless the! submission of the same is necessary _

to enable the jury to properly pass upon and render a verdict :

upon the issues. It has been held that’ such language in |

‘the. Rule allows the Trial Judge some choice of’method

with reference to the submission of a theory of recovery

or defense. The Rule affords a greater latitude to the Trial

Judge than did the Statute. Viduarri v. Bruni, 179 S.W. 2d

“a of general charges whenever there is good

-~ need for same to properly aid the jury. In my opinion,

however, this does not license an unlimited use of gen-

It is apparent that the only reason explanatory insiruc-

tions are ever given in connection with a special issue is to

enable the jury to properly. pass upon the issues. There is

no license to give the jury abstract legal instructions with

‘which the jury is not concerned and which cannot serve

as a guide in answering the issues. Therefore, in apprais-

ing the’ action of the Trial Court in refusing Petitioner's

requested Special Instruction No. 2, the test to be applied

is whether such instruction enabled the jury to understand

and pass upon the issue. Such additional instruction was

statement of the law with which the jury was not concerned.

' The instruction did not furnish a guide for any term or

phrase used in thé issue. It was wholly immaterial whether

the Respondent’s duty was a “continuing” one or whether

the same was “non-delegable” insofar as enabling the jury .

‘to answer the inquiries since it furnished no definition of

any legal term used in the issues. The jury had before it

Justice Dooley, writing in 20 Texas Law Review 32 at Page 36.

". @ proper definition of “reasonably safe place in which to —

work” (not objected to by Petitioner) and there was no

_ necessity for thé jury to have. any / further instruction in

order to answer the issue. ‘The portion of the requested

‘ definitions, “continuing, non-delegable”, were simply not

ible Go Gidea: Wile tne arenes tn-lhp wsocet

' that Respondent had attempted to delegate to anyone its

. duty of furnishing to Petitioner’s — a reasonably

' safe place’in which to work.

“It is not the province of the jury’ to pass upon the law

and in most instances, it is-unnecessary that the jury be

charged upon abstract propositions of law. It is never proper

under special’ issue submission for a Trial Court to advise

the jury of all of the law in connection with a case and

at most the law should not be given to the jury except as

a guide to enable the jury to reach an answer. Therefore,

in determining whether the Respondent, as an ordinary

“cprudent employer, exercised. ordinary care in furnishing a —

reasonably safe place for Petitioner’s decedent, J. T. Hul-

lum, to work -on the occasion in question, it certainly was —

not necessary, or even proper, for the jury to know whether

_ the employer’s duty was a “continuing” and “non-delegable”

-one. The instruction could not have aided the jury. :

a Tee ey en rT

‘support the action of the Trial Court in refusing such

requested instruction. The leading cases on the interpre-

tation of Rule 277 is Boaz v. Whites Auto Stores, (1943) _

141 Tex. 366, 172 S.W. 2d 481. The Court, at Page 484,

states as follows: |

“The precise question here for decision is whether such —

change was made by Rule 277, Texas Rules of Civil

Procedure, as would authorize the giving of such instruc-

* tion. ‘The language of Rule 277 bearing upon the par-

| ticular question for decision is as follows: ‘* * * In‘sub-

mitting special issues the Court shall submit such ex-

planatory ‘instructions and such definitions of legal

terms as shall be necessary to enable the j jury to proper-

ly pass upon and render a verdict on such issues, and in

such instances the charge shall not be subject to the

objection that it is a general charge * *.*’ .

_“By comparing this language with that of the statute,

_ Art. 2189, it will be observed that in the rule the words

: ‘explanatory instructions’ are substituted for the word

‘explanations’. Clearly the rule affords a greater lati-

tude to the trial judge than did the statute, and in-

structions are now permissible -which formerly would

have been condemned. However, the rule does not au-

thorize the giving of an instruction which is not ‘neces-

sary to enable the jury’ to properly pass upon and

render a verdict-on such issues’; and which is oT

to prejudice one of the parties before the jury.”

Generally, the Courts have held that instructions giving

the’ responsibilities and’ duties of the parties to an .action

~ are not authorized under Rule 277 and should not be given.

In Panhandle & Santa Fe Railway Company uv.’ Walker,

(1963) 364-S.W. 2d 438, NRE, the Appellant complained

of the refusal of the Court to give the following requested

charge to the jury: ae

“You are instructed that defendant, Peshensile & Santa

Fe Railroad Company owed no duty to plaintiff, an em-

ployee of Kellogg Construction Company, to furnish

hn tee olden ident tevin

or-about cars in which plaintiff might be working; its

only duty was to exercise ordinary care under the facts

and circumstances then existing.”

The Court held that such refusal did not constitute revers-

ible error, citing numerous authorities. -

. In Texas Bus Lines v. Whatley, 210 S.W. 2d 626, NRE,

(1948), an automobile collision case, complaint was made

of the refusal of the Trial Court to give the following —

_ instruction:

“As between defendant, Texas Bus Lines, and the De-

fendant Ellision, the driver of the bus owed no greater

_, duty to protect plaintiff, Mrs. Whatley, than did the

defendant Ellison.”

The Court approved the refusal of this instruction, stating

that the requested. charge was a general one and the Court |

did not believe that. the requested charge was necessary

..to enable the jury to properly pass upon the issues. — .

In Tripp v. Watson, 235 8.W. 2d 677, NRE (1950) the

_ Tequested special instruction, refused voll the Trial ——

_ Was as follows:

“Yous ane tnatrocted that Axt. 6687b, Sections 2, "7 and

9; Revised Civil Statutes of Texas (Vernon’s Ann. Civ.

St. Art. 6687b, Sections 2,.7 and 9) prohibit the opera-

tion of ‘passenger or commercial vehicles upon the high-

ways of this State by any person unless such person has’

‘ the valid license an operator, commercial operator or

chauffeur. You are further instructed that Art. 6687b,

Revised Civil Statutes of Texas, requires an applitant

for an operator’s, commercial operator’s, or chauffeur’s.

scans 00 ee ee ee

issuance of a license.”

“‘The Appellate Court held that the requested instruction

| __was not one which would have aided:the jury in answering

‘any of the issues submitted to it, nor was it a definition eras

of any term contained in the charge.

_ In Mosby v. T & P Railway Co., 191 SW. 2d 55 (1945) -

(no writ), the. Appellant ratirond ieee the ‘following

special instruction.

“A railway company is not to be regarded as an insuror

of the safety of its employees, but. it is compelled to

use ordinary care in providing reasonably safe and prop-

er equipment, appliances . and places where its em-

ployees can follow their vocation.”

hs ddlabinied Beilin ead waked, ‘he Cost

held that although the same is not to be condemned as a

general charge under Rule 277, such instruction was ‘not

necessary to enable the jury to properly pass upon and

render a verdict 'on the issues. We submit that this case is

‘e»» directly in point and that the special instruction requested:

; by Petitioner in the case at bar is no more necessary than

_ the one condemned in the cited case. The Court, in Gonzales

- v. Orsak, 205 S.W. 2d°793 (1947) (no writ) held as reversible

error the giving of the following special instruction: |

“It is the duty of the driver, rider, of operator of a ve-

. hicle about to be overtaken and passed to give way to

_ the right in favor of the overtaking vehicle on suitable

and audible signal given by or on behalf of the operator,

driver, or other person in charge and control uf such

overtaking vehicle if such overtaking vehicle be a motor

| ‘Seeaeibeneninwnuns nik

ing such an issue, under Rule 277, tte Cane diovdd caly ?

submit explanatory’ instructions as shall be necessary ‘to ;

enable the jury to properly pass upon and render a verdict

~on-the-issues. As given, the instructions constituted error.

Other examples of instructions properly refused: An in-

struction that a dog is a domesticated animal and that the |

' Owner or person in control of such domesticated animal has

_ ho responsibility or duty imposed upon him, under the law,

to confine or restrain such dog unless such dog is of such

vicious nature as would cause him to stray from the premises,

etc. Dakan v. Humphreys, 190 S.W. 2d 371 (1945) (No

writ); an instruction to the effect that a Reclamation Dis-

trict, through its Board of Directors, had the exclusive

_ power to determine the necessity or convenience-of taking _

a person’s property, except where the-exercise of such power

involves a clear abuse of discretion. Brazos River C. and

Reclamation Dist. v. Harmon, 178 S.W. 2d.281 (1944) Ref.

A case directly in point clearly upholding the refusal of

‘Petitioner’s requested, instruction, is Guthrie v. Sinclair Re- ~

fining Company, 320 S.W. 396 (1959) NRE, Cert. den., 4

Law Ed. 2d 120. This was an action brought under the Jones.

~~ Act? for personal injuries sustained wheh the plaintiff

stepped upon a short length of line which lay on the lower -

deck level of a ship. The Trial Court submitted negligence

in the form of asking the following Issue: “Do you find

“—46 U.S.C.A., Section 688.. This Section extends to any seaman

who - suffers ‘personal injury in in the course of his emplo ‘se

cause of action identical with the rights and .

de under the sicsenens tte se Liability Act, Section 51,

et seq. |

that at,.and immediately prior to, the time Eugene D.

Guthrie . suffered. injury, if any, the presence of the line, ©

if any, made that part of the deck where it lay not a rea-

sonably safe place to work?” In connection with this special

issue,- the Court” kave the following instruction: “By the

term ‘reasonably Safe place to work’ is meant a place in

which the work to be carried on can be done with reason-

able safety”.

The plaintiff requested an ‘issue as follows: “Do you

find from a preponderance of the evidence that defendant’

failed to furnish to Eugene D. Guthrie at the time, and

on the occasion of his ‘injury, if any, a reasonably safe

place in which to work?” In connection with the plaintiff’s

‘requested issue, he also requested an explanatory instruc-

tion making’ clear the federal law as to the distinction

between the “absolute” and “non-delegable” duty of the

employer and the duty of ordinary care imposed upon the

employer. The Court held that the requested instruction ~

_ in connection with plaintiff's requested issue was an in-

struction on the law, with which the jury was not concerned

and that its refusal was proper. The Court stated that ‘the:

instruction requested in connection with the-requested issue

‘was not necessary to enable the jury to properly pass upon

and answer the issue relative to a safe place in which to

work. The Court stated that had the Court given such

7 instructions, the same would have been improper and error. —

We submit that this case is directly in point and makes

. it clear that the Trial Court in the case at bar was correct

in refusing Petitioner's requested Special Instruction No. 2!.

| 37

A closely analogous case is found in Robinson v. Gulf,

Colorado & Santa Fe Railway Co., (1959) 325 S.W. 2d 482,

err. ref., cert. den., 80 Sup. Ct. 672, 362 U.S. 919, 4 Law

Ed. 2d 789. Suit was brought under the Act for damages

for the death of an employee of the defendant carrier. Nu-

merous special issues were submitted inquiring as to specific |

acts of negligence. The Trial Court refused a specially

requested issue inquiring as to whether the defendant failed

to provide the decedent ‘with a safe place to work. The

Appellate Court held that the specific issue submitted in-

’ cluded all of the grounds upon which a finding of unsafe

place to work could be based. In the case at bar, of course,

in addition to the specific acts of negligence submitted . by

the Court, there was also submitted Special Issue No. 9,

which was a global submission or a general submission of ©

that issue. (Tr. 42) The important holding in the Robinson

case, however, is that even if it was error for the Trial Court

to have failed to submit the issue of unsafe place to work,

‘the error was of such nature that it “probably did not cause

the rendition of an improper judgment” as contemplated by

Rules 434 and 503, Texas Rules of Civil Procedure. In the

case at bar, of course, it is strongly evident that there is

no harm inasmuch as the Trial Court gave not only the

global form of submission, but also the specific issues. <

On the point under consideration, we conclude with the

citation of Archey v. Nederlandsch-Amerikaansche Stoom _

Maat., 354 S.W. 2d 688, cert. den., 9 Law Ed. 2d 236, 371

U.S. 929, 83 Sup, Ct. 299, This acticin arose under the Jones :

. Act and was an action for damages brought by a stevedore ©

, injured while storing cargo in a wharfed vessel. A take

nothing judgment was rendered. The complaint upon appeal —

vi acs nh ailenaatenisase tated indmrmaaaean ene ecliadindl

eek a py 90 Sane | _

| i ook Saleh thas apple ir Bis an

absolute duty upon Defendant to furnish dunnage in

the hatch where it was to be used that was reasonably

suitable for the purpose of stowing the steel drums with

safety. Defendant cannot delegate such duty to any

stevedoring company nor can it contract such duty

_ away to any other party.”

"In affirming the Trial Court's Solanum, the Coat tia.

that the requested instruction was not, under Rule 277,

necessary to enable the jury to pass upon and render a_

* verdict upon the issues. Instructions in the nature of a

general charge are exceptional, and are to be given only

when the necessity therefor exists. At page 692 of the

, Court's opinion, the Court states:

“How knowledge of the legal obligation. of Holland-

America Line’s non-delegable duty to furnish suitable

dunnage would have aided the jury in determining from

the facts before it that the dunnage used was or was

not a -proximate.cause of Archey’s injury is not ap-

parent.” — $3 ae | :

That statement is directly applicable to the case at bar and

. fully sustains our. contentions that ‘Petitioner was denied

no federally created right by the refusal of the additional

charge on the law. :

; - &@

V.. The Trial Court’s submission to the Jury of an issue

on unavoidable accident and the Appellate Court’s refusal

to set. aside the jury’s ® findings thereon did not deny to a

—— any federally created right.

a. Petitioner has not properly preserved alleged error

} in regard to the submission of such Issue inas-

much as Petitioner objected only upon the ground

that the same was a double submission of other

issues. and enlarged her burden of proof.

b. If the point had been properly preserved, the sub-

mission of the Issue was proper because it placed

no ‘onerous burden upon the Petitioner and, inas-

much as Petitioner did not procure a finding of —

actionable negligence _against— Respondent, the

finding of the jury on unavoidable accident i is im-

material. .

‘Preliminarily, we wish to sii out that Petitioner’s claim

that the submission of an Issue on unavoidable accident

deprived her of a federally created right is being raised for

object to the submission of Special Issue No. 20. (unavoid- .

able accident) on the ground that it was a double submis-

sion of other issues in the case, thereby increasing ‘Peti-

tioner’s burden of proof. (See Paragraph X, APPENDIX

“N”, Pet. for Cert.) There was no attempt on her part to

demonstrate that by submitting the i issue, she was deprived

| ofa federally created right. We submit that the point has

not been properly preserved. Atlantic Coast Line Ry. Co. v.

_ Mims, 242 USS. 582, 61 L. Ed. 476, Be that as it may, how-

. ever, Petitioner’s complaint regarding the submission of this

_ issue is purely academic, The jury found. that there was

or i

~ oe

—— bd heared raised. (S.F. 209, 469) -

no negligence on the ‘a of the Respondent and the finding

of unavoidable accident was immaterial ‘under the facts of |

this case. If Petitioner had met her burden of establishing

primary negligence on the part of Respondent, she, at the

‘same time, with no additional burden, would have estab-

lished. that it was not an unavoidable accident. The very

definition of unavoidable accident demonstrates this. There- .

fore, there was no onerous burden placed upon Petitione® -

and. no federally created right has been denied her. More-

over, ‘the submission of the issue was proper because, under

the testimony ‘of the Decedent, J. T. Hullum, unavoidable.

bs]

VI. No federally onaiaa right was denied Petitioner by

| admitting into evidence (a) a conversation between Re-

spondent’s Engine Foreman, W. B. Bradley, and Petition-:

er’s decedent, §. Ti ' ‘Hullum, and (b) motion pictures

demonstrating ‘to the Jury the, ‘type of “kicking opera-

tions” used in the Tyler Yards,~ because ‘the evidence,

under Federal as well as Texas Court Decisions, i is clearly

ene and admissible under the facts of this case. |

W.B. Bradley, who was a meuibes of the switching crew

on the occasion in question, was not a party to this lawsuit.

His deposition had been taken by Petitioner and a portion

of the deposition was offered by her upon the presentation

_of its main case. Thereafter, Respondent offered certain

_ portions ‘of this deposition. 'The part of’ which complaint

is now made is that portion covering a conversation Mr.

Ww. B. Bradley had. with the deceased, J.T. Hullum, while

‘AL

e :

conversation to “ap objection is made is as follows:

“Q. Did he (J. T. Hullum) tell you wanes about:

what had happened? ;

“A. No, sir. Other than he said he didn’t hold any

member of the crew responsible or feel any ill feeling

toward any member of the crew about the accident.”

(S.F. 209) =

Petitioner objects to this on the grounds that it was a self

serving declaration - on the part of the witness, Bradley,

the same was hearsay, and was a conclusion. Petitioner

also made reference to: the Dead: Man's Statute but it is

_ not clear that he made that additional oe sre to the’

proffered testimony. °

If we correctly understand Petitioner’s Point, he objected

.to the testimony on the grounds that it-was hearsay, a

conclusion on the part.of the declarant, and in contravention

of the Dead Man’s Staiute, Art. 3716, R.C.S. ‘Fexas.

The point is not well taken because such a statement

_. by Mr. Hullum to the witness, Bradley, was admissible as

an Admission and, as such, constitutes a well recognized

'.. exception to the hearsay rule, Admissions’ are to be

tinguished from declarations against interests. Admissions .

are recéived as original evidence against the party making

them. They constitute an exception to the hearsay rule,

"and. must come from a party in interest or his agent or

predecessor, whereas a declaration against interest may

come from anyone. McCormick & Ray, Texas Law of Evi-

dence,'Vol. 2; Page 21. The statement made by J. T. Hullum

to Bradley was admissible against Petitioner because the

Petitioner stood in the shoes of J. T. Hullum. If J. T. Hullum

could not have recovered in this case had he lived, certainly

the Petitioner could. not recover. J. T. Hullum was the

predecessor of Petitioner and the testimony is clearly admis-

sible against Petitioner.

In McLean v. Hargrove, 139 Tex. 236, 162 S,W. 2d 954,

(1942), it is stated that the rule in Texas is that Admissions,

declarations or statements made by a person against his

interests are admissible against him or those claiming.unier

. him. In Hupp et al v. Hupp, 235 S.W. 2d 753, NRE, the.

- Court held that statements made by a deceased against

his interests to third persons during his lifetime were admis- |

sible against those claiming under him.

This same type of evidence was held admissible in

: Lubbering, Administratrix, v. N. O. Ellison, Jr., 342 S.W.

2d 796 (No writ) (1961).

Nor is there any mevit in*Petitioner’s contention that

the testimony was inadmissible because the same was a

conclusion. The law is well settled that a party’s admis-

sions are in no way limited by the opinion rule. McCormick

& Ray, in Vol 2, Texas Law of Evidence, at Page 23, state

‘as follows:

“This is clearly supported by every day practice in our

courts, where statements made by a party that he was

‘at fault’, fin the wrong’, pon fr Bg hv ponding

sions are Customarily received in evidence against him

without question. The opinion-rule is a rule designed

to re the examination of witnesses on the stand,

go as to receive from them as far as practicable con-

‘crete descriptions, rather than opinions which describe

less definitely the facts inquired about. Obviously, this

policy can have no application to the question.of admit-

ting statements made out of court, for such statements

may be of great value as evidence, whether or not they

happen to be what would be called in the courthouse

‘facts’, meaning the most concrete description of the

situation, or ‘opinion’, ‘ ing a less concrete state-

ment.” 3 . .

An almost identical situation was presented in Hovey

et al v. See et al, 191 S.W. 606, No writ. In that case, the

surviving widow brought suit for the death of her husband,

who was a locomotive engineer for the Kansas City, Mexico

& Orient Railway Company of: Texas. Briefly, the fatal

injuriés were received when the Plaintiffs decedent had:

operated a passenger train into San Angelo, Texas. He

noticed the engine he had operated attached to an out-

going north bound passenger train. He went over to it and

was inspecting it while it was in a stopped position. Another

engine on a parallel track struck the engineer, injuring him,

and resulting in his death. On the way to the hospital, the

engineer stated to Witness Robinson that he did not blame

anybody for the accident; that it was caused simply because

he, the deceased, ‘stood up there and let an engine run over

The Trial Court excluded this testimony, but the Appel-

late Court reversed the case for such exclusion and: held

that the evidence was admissible. on two theories, first, res

gestae, and second, as an ‘admission. The Court’ further

' held: that such testimony was not opinion testimony, but

was a statement of fact from the decedent to the effect

that no one else was responsible for the accident.

vale

This case is directly in point and effectively answers

Petitioner’s contentions in this case. A-portion of the Opinion

is here reproduced: ane .

“If the proposed testimony was either res gestae,

or would have been against the interest of the party

- ‘making the statement, then it was admissible, and its

exclusion error. See I. & G.N. RR. Co. v. Anderson,

82. Tex. 516, 17 S.W. 1089, 27 Am. St. Rep. 902; Smith

v. I & G.N. RR. Co., 34 Tex. Civ. App. 209, 78 S.W.

“ 556; Georgia RR. & Banking Co. v. Fitzgerald, 108 Ga.

507, 34 S.E. 317, 49°L.R.A. 175; Walker v. Brantner,

59 Kan. 117, 52 Pac. 81, 68 Am. St. Rep. 344; Hughes

v. Delaware & H.-Canal Co., 176 Pa. 254, 35 Atl 190;

Holman v. Boston Land & Security Co., 20 Colo. 7, 36

Pac. 797; Lord v. Refining Co., 12 Colo. 390, 21 Pac. 148;

Eastman v. Bennett, 6 Wis. 232; Dreher v. Town of

Fitchburg, 22 Wis. 675, 99 Am. Dec. 91; Gulzoni v. Tyler,

64 Cal. 334, 30 Pac. 981; Helman uv. Pittsburg etc Ry.

Co., 58 Ohio St. 400, 50 N.E. 986, 41 L.R.A. 860;

Southern Ry. Co. v. Cochran, 42 South. 100; Williams v.

' Norton Bros., 81 Vt. 1, 69 Atl. 146; Brown v. Stutson,

100 Mich. 574, 59 N.W. 238, 43 Am. St. Rep. 462;

Pead v. Trull, 173. Mass. 450, 53:N.E. 902; Hurlburt v.

Hurlburt, 128 N.Y. 420, 28 N.E. 651, 26 Am. St. Rep.

482; Haynes v. Trenton, 123 Mo. 326, 27.S.W. 622; 1°

R.C.L. p. 502, par. 43; 4 Chamberlayne, Modern Law

of Evid. ‘Section 2773; 1 Greenleaf, Evid. (16th Ed.)

Sects. 147-150; 2 Jones’ Commentaries on Evid. 390; 6

Thompson, Neg. Sect. T1838; 2 Wigmore, Evid., ‘Sect.

- 1455 et seq. .

“(2) The writer is pial to believe that for the

both reasons its rejection was error, but, since the court.

~ Gs in accord with the view that it was ‘admissible as a

‘ statement against interest, it is not necessary to pass

upon the question as to whether it was admissible as

res gestae.”

* * * * * : >

“Besides this, the declaration in question went further

than that of either of the other witnesses, in that the

declarant stated that he did not blame anybody for :

the accident, thereby in effect saying that he absolved

. any other party from blame; and it was not a matter of

_ Opinion, because he knew whether or not anybody was

‘to blame for the accident. We therefore sustain this

assignment, and hold that the Court erred in excluding

the testimony.” — ? ’

~'This rule has been adopted in Texas and the above quoted

text is found and affirmed in Taylor v. Owen, 290 S.W. 2d

TA”, (1956). NRE. In the Taylor case the defendant had

made a prior admission that plaintiff “was not at fault in

any way”. This statement was admitted as an Admission

against the defendant. fr ek ee ene

In Farrand v. Houston & TCR Co., 205 S.W. 845, err.

dism., a Plaintiff was suing for personal injuries and the

defendant offered évidence that soon after the injury the

plaintiff stated that it was his fault and that he blamed no

one. The Court held such testimony was admissible.

_ With reference to. such testimony being’ a conclusion,

the Court in the Farrand case stated as follows at Page.848:

“The main objective below, and the only one insisted

upon here, is that it amounted to a mere conclusion

and not the statement of any fact. With this deduction,

however, we are not inclined to agree, but rather think,

in the light of all the facts and circumstances present

here, the same thing might be said of this boy as was

said of the engineer in Hovey, Receiver v. See, 191 S.W.

606: The declarant stated that he did not blame any-

_ body-for the accident, thereby, in effect, saying that

'_ he absolved any other party from blame; and it was not

a matter of opinion, because he knew whether or not

anybody was to blame for the accident.”

Finally, Petitioner says that the testimony was in con-

travention of the Dead Man’s Statute, Art. 3716, aforesaid.

. Even if the Dead Man’s. Statute were applicable in this

situation, (and it is not). the same does not apply to officers, .

agents, or employees of a party corporation. Pruett v. First

National “Bank of. Temple, 175 S.W. 2d 648, (no writ);

Daughters of Tabor v. Fridia, 91 S.W. 2d 404 (no writ);

Chastain v. Texas Christian Missionary Society, 78 S.W.

2d 728, err. ref.; Colonial v. Thedford, 51 S.W. 263 (no writ) ;

San Antonio Light v. Moore, 101 S.W. 867, err. ref., 5 Texas

Law Review 149 (Page.156) ; Lomax v. Marlow et al, 38 S.W.

man’s Building Corp., 273 S.W. 2d 105, err. dism.

In the Thompson. case last cited above, Justice Norvell at

Page 107 of the opinion, states as follows: :

“(1) Upon the ‘trial, objection was made to the re-

basis of Art. 3716, Vernon’s Ann. Tex. Stats., commonly

referred to as the Dead Man’s’ Statute. No express

ee ee ae eine

the objection was carried along with the- case. The -

ye becomes material, however, in considering

the sufficiency of the evidence. In our opinion, the

‘ testimony was properly received. Although the wit-

nesses may have been officers or agents of the Appellee

Se eee

application to such persons.” . |

Inasmuch as the witness, W..B. Bradley, was not a

party to this suit either nominally or formally, the Dead

Man’s Statute would not apply to his testimony. We

submit that the statement made by J. T: Hullum to the

witness, Bradley, was clearly admissible as an Admission.

‘ ose Tcas ttn ot.

, 47 |

Another complaint of Petitioner is with reference to the

admission of certain ‘motion pichires demonstrating to the

jury the type of “kicking operation” used in the Tyler

Yards. The accident in which the deceased received: fatal

injuries occurred during a switching operation, commonly |

known in the railroad industry as a “kicking” operation.

This is a highly specialized and technical operation of spot-

ting boxcars efficiently. Since there are other forms of

switching operations, it was necessary for the jury to un-

derstand the term. It occurs to us that it did no harm for

the jury to understand what the witnesses were talking

about, and Respondent offered moving pictures demonstrat-

ing the type of switching involved, A predicate for this film —

was first laid by the testimony of witness W. B. Bradley,

who was engine foreman in charge of the switching opera-

tion both upon the occasion of Mr. Hullman’s injury and

when the film was made. He testified that the film showed

precisely the same type of move which -was being made

_ at the time Mr. Hullman was injured. (S.F. 402) As is

clearly reflected in the record, the purpose of the film was

to demonstrate only the type of movement being made

at the time of the accident. (S.F. 402) Petitioner’s counsel

recognized this, (S.F. 424) Witness Bradley testified that.as -

far as practical the movement shown in the film was exact-

ly the same as that made at the time of the accident. (S.F.

441) Respondent produced also witness Jay Oistad, a pro-

fessional photographer who, at the direction of its counsel,

took the moving pictures, The films displayed were properly

. Made and correctly portrayed the objects he had seen with

the naked eye. There had been no cutting, erasing or tam-

pering with the film and the same had not been’ edited prior

to bringing it to Court. (S.F. 415-426) Petitioner’s coun-

sel objected to the introduction of the film without first

having a preview. (S.F. 419) Accordingly, by agreement of —

all parties, the film was displayed out of the hearing and

“presence of the jury. (S.F, 421) After having viewed the

film, the careful Trial Court permitted only the display of

that portion of the film where the photographer had testified

there had been no difficulties of any kind, (S:F. 423) hold-

ing that Petitioner’s objections, went to the weight and not

to the admissibility of the evidence. |

The use of demonstrative evidence has been approved by

the Courts (State and Federal) for many years.. Motion pic-

as such, likewise have been approved in many cases. |

determination of the admissibility of demonstration or ex-

perimental testimony résts within the discretion of the Trial —

_ Judge. Generally, the same is admissible if there is a sub-

stantial similarity between the conditions existing at the time

of the occurrence which gives rise to the litigation and those

in existence at the time the experiment is conducted for

demonstration purposes. If the dissimilarity between oc-

currence conditioris and the experimental conditions is minor,

or can be made abundantly clear by explanation, the same

should be admitted. Ft. Worth & Denver Ry. Co. v. Williams,

Sup. Ct. Texas (1964) 375 S.W. 2d 279. Justice Norvell, in

the Gited case states at Page 282 as follows: :

“Tt is not, however, essential that the cenilitiven of the

occurrence and the experiment be identical, citing au-

o”

“Very few tests can be made under the exact conditions

present when a prior event occurred. The law requires

only that substantially the same conditions must exist.

- And the Trial Court is allowed considerable latitude

in determining whether the conditions are sufficiently

similar to permit testimony about the tests.” ~

In Ervay-Canton Apartments v. Hatterick, 239 S.W. 2d

. 150, NRE (1951) the Court states: “Allowing real or demon-

strative evidence to be introduced in Court rests largely —

within the discretion of the Trial Court. * * * It is admis-

sible for experiments to be made from such real or demon-

strative evidence in the presence of the jury” (Page 152)

The basic principles governing exhibition of still pic:

tures in evidence govern admission of motion pictures, and .

considerable discretion’ must be vested in the Trial Court

as to accuracy of the picture and as to the relevancy. of the

picture, particularly as to whether it will tend to aid the

jury or to confuse the jury. Morris v. E. I. DuPont DeNe-

mours & Co., 139 S.W. 2d 984. (S. Ct. Mo.) The decision

of the preliminary question as to whether the conditions are —

so substantially similar as to authorize the introduction of

the evidence is necessarily for the Trial Court, and he has -

. considerable latitude in deciding it. Pittman v. Baladez, 158

Tex. 372, 312 S.W. 2d 210 (1958). So, in a case involving a

suit against a railroad, the question as to whether to admit

a railroad’s evidence of a { a test made on a switch during the

course of trial, which test was made nearly one and one-half

years after the accident, where the plaintiff claimed the

physical situation surrounding the switch was not the same

..as it was ont the day he was hurt, the matter held to be

clearly discretionary with the Trial Court. LaFr

York, New Haven & Hartford Railroad Co., 292

649 (1961). er oe F im

As stated in Ft. Worth & Denver Ry. Co. v. ‘tliclee |

supra, it is not essential that the conditions of the occur-

"rence and the experiment be identical. This has-been the’

rule in Texas at least as early as 1921, when, in. the case of

Panhandle & S.F..Ry. Co. v. Haywood, 227 S.W. 2d 347, er.

‘ref. experimental evidence was offered as to how far a child

could be seen by the ‘train crew of an approaching engine. |

Tests were made under conditions similar to those existing

at the time of injury, but there were important differences.

The Court held that exact ‘similarity of conditions is not

absolutely essential to-sustain the introduction of evidence

as to the result of experiments, but that there need be only

a substantial similarity ‘and that dissimilarity affects the

weight rather than the admissibility of the evidence. The

Court, ini the Panhandle case, states as follows: i

for the Trial Court and he has considerable latitude

of discretion in deciding it.” — ‘iste

The Court, in Houston E. & W. T. Ry. Co. v. Sherman, —

42 S.W. 2d 241 (Com. App.) held that it was permissible

to prove the existence or non-existence of a fact by experi-

ments made for that purpose under circumstances substanti-

3 ally the same as those existing at the time of the occurrence

_OF non-occurrence of the alleged fact. In the cited case one

witness was permitted to testify to an experiment made by

him about six months after the accident, which experiment

was designed to ascertain how far a train approaching a

crossing where the accident occurred could be seen. There

' was testimony that when these experiments were made the

conditions surrounding the scene were substantially the same

except that the weeds, grass and bushes on the right-of-way

of the crossing had been cleared away. The Court held that,

‘with explanation, it was not error for the Trial Court: to |

permit plaintiff to make proof of the observation experiments,

_ . . See also Standard Motor Co. v. Blood, 380 S.W. 2d 651 -

(Tex. Civ. App., no writ). Aethe:

An interesting case appears in Richardson v. M. K.& T

Ry. Co. of Texas, 205 S.W. 2d 819, err. dism. (1947). The

suit was made by S, A. Richardson against the defendant

carrier under the Federal Employers Liability Act to re-

~h fFu

oA ‘cover for injuries sustained by him while he was operating

a machine ina planing mill of the defendant’s machine shops.

‘The plaintiff appealed from. an adverse judgment. One of .

his complaints related to the Trial Court’s admitting into

evidence a. technicolor motion picture showing the op-

eration.of the machine which allegedly caused the plaintiff’s

‘ - injury. One of his objections was that a proper predicate

' had not been laid for the showing . of the motion pictures —

.- because they were not made under the same or similar cir-

cumstances: a8 those existing when the accident occurred.

- The Court upheld the Trial Court in admitting.the motion

‘pictures, stating in part at Page 824 as follows:

*: “All the authorities recognize the law ‘to be that when .

a: photograph or motion picture is‘sufficiently verified

and is a proper representation of an important fact in _

issue and that it is instructive on preliminary questions —

‘to be determined by the tryer of. the facts, the admis-

« sion or rejection of the picture is a matter which rests

largely. in the discretion of the trial judge, and that

his decision in the matter will not be disturbed by the

. Appellate Courts unless he has arbitrarily exercised

such wide discretion. The question is. not whether

he acted wisely in‘allowing the picture to become part.

of the evidence, | but the question for us to decide is,

- did he abuse his discretion by doing so?” .

does not show.the exact conditions at the time of the acci-

-dent) went to. weight rather than to admissibility. See also

-Blake v. Harding, 54 Utah 158, 180 Pac. 172.

It is clear that under the decisions, Petitioner’s obies- ao

tions go to the weight of the evidence and not to its admissi-

_ bility. As stated’in Panhandle & S.F. Ry. Co. v. Haywood,

supra, “Tt seems to be the rule that an exact similarity in :

: conditions is not absolutely essential to sustain the intro-

-.duction of evidence as to the result of experiments; only a

: substantial similarity is required, and this similarity affects

the weight rather than the admissibility of the evidence.”

' Similar holdings were made in Ft. Worth & Denver. Ry.

Co. v. Yantis, 185 S.W, 969, err. ref.; and Richardson v.

M. K. & T. Ry. Co. of Texas, supra.

Thus, it has been held in many cases that experimental

or demonstrative evidence is admissible where only a sub-

stantial similarity is shown and where the Court has held

. that the poirits ‘of dissimilarity ‘have been satisfactorily ex-

plained. The admissibility is left to the sound discretion of

the Trial Court. Examples of such evidence held admissible

were as follows: -

Evidence of an experiment in giving cattle water with

sodium bicarbonate to prove that the drinking of the same

resulted in a falling off in milk production, Lone Star Gas

Co. v. Thomas, 345 S.W. 2d 844 NRE:

Experimental testimony relating to the slippery effect cer-

: tain substances had upon a ladder upon which plaintiff was

injured, it appearing that the demonstrative evidence con-

ditions were quite dissimilar from the conditions at the time

plaintiff was injured, McAllister v. Magnolia Petroleum

Company, 319 8.W. 2d 411, NRE; ane

it took a street car to reach one point from another, held

5A ce

gdmissible, although conditions greatly dissimilar, Dallas

-Railway & Terminal Co. v. nen ee Ae a. 2d

77 (1961);

“Experimental testimony demonstrating the manner in

_ which a banana: peel would smear a rubber mat in.a coach

where plaintiff hdd slipped and fallen, held admissible al-

though many of the conditions were dissimilar, Ft. Worth

& Denver Ry. Co. v. Yantis, supra;

Demonstrative evidence.tending to show how far a man

could be seen on the track south of the road crossing by

. persons standing on the crossing, held admissible, Houston

& T. C. Ry. Co. v. Ramsey, 97 S.W. 1067, err. ret.;

Demonstrative evidence in the form of colored motion pic-

tures demonstrating how defendant’s machine was operated,

held admissible, Morris v. E. I. DuPont DeNemours & Co.,

(Sup. Ct. Mo.) 139 S.W. 2d 984. See also 85 A.L.R. 480.

As stated in McCormick & Ray, Vol. 2, Texas Law of Evi- —

dence, at Page 322, “As the novelty of the use of motion

pictures in Court has worn off, the Courts have shown

- greater liberality in receiving the films where they hold pro-

mise of assisting the tryers in resolving any issue.” Of course,

there are a multitude of cases admitting motion pictures

showing activities of claimants in workmen’s compensation

cases. , -

It is not: controverted by Petitioner that the movies in

question were offered merely to demonstrate the -type of

"switching operation in which the crew. was involved at the

time of the, accident, (S.F. 402) The qualifying witness

Bradley stated that the operation was “substantially the

same as being made at the time of the accident.” He testified

- that, “As far as practical it was precisely the same move-

ment.” (S.F. 441) This switching operation was performed

not only at the same location, but also the same tracks were

being used and the “kicking” movement was made upon the

very track where the deceased received his injury. The speed

of the cut of cars was precisely the same as had been testified

to by numerous witnesses. Moreover, the points of dissim-

ilarity’were explained in detail by the witness. There was no

occasion for the jury. to be misled in any way. Those ex-

planations, taken in conjunction with the purpose for which

the demonstration was made, enlightened the jury as to what

"Was meant by a “kicking” movement. It enabled the jury

to get'a first hand impression of the actual type operation in

_ use at the time decedent received his injury. There -was -

neither an attempt nor a claim made here that Mr. Hul-

lum’s accident was being re-enacted. We were demonstrating

a “kicking operation” only at the locale where Mr. Hullum

received his injury — nothing more. (S.F. 419) Moreover,

prior to displaying the movies, Respondent proved beyond

contravention, by an experienced photographer, that the

pictures were correctly taken with good equipment and good _

film, that having developed the film, the same correctly

portrayed the objects seen by the photographer with his:

naked eye. Those portions of the film which were defective

eration was completed, were not shown to the jury and the

careful Trial Judge below excluded them. The films clarified

for the jury what witness Bradley explained to them and

demonstrated before them upon cross-examination by Pe-

“‘titioner’s counsel. (S.F. 431-442) The jury, having seen the

film, at least had a clearer picture and idea ‘as to what all the

witnesses were talking about in the matter of “kicking”,

“humping”, “stretching and bunching the slack”, “pulling

of the pins”, “releasing of tension on the draw bars’, and

similar technical terms used by these witnesses in this case.

Efforts to enlighten the jury so that it may better under-

stand the evidence presented should not be condemned. The -

’ use of demonstrative evidence is usually recommended and

approved. As stated above, any points of dissimilarity such

_ different crewmeh, were adequately explained prior to the

display of the movies. It is inconceivable to us how the jury,

* in view of all that, could have been misled in any manner. We

do not see how the displaying of this demonstrative evi-_ :

dence could have harmed the Petitioner in any way. Houston

& T.C. Ry. Co. v. Ramsey, supra. |

The evidence was clearly. admissible aii State Law

and under Rule 43, Federal Rules of Civil Procedure. The

.. Federal Rule favors .the reception of the evidence. It is

~~ difficult to see how the admission of this competent evidence

denied Petitioner a federally created right. =

VII. No federally created right was, denied Petitioner

because there has been no improper judicial review by

the Appellate courts below. _

The Petitioner asks this Honorable Court to ais the

State standard of the sufficiency of the evidence instead

of the Federal standard which has been so carefully es-

tablished in such cases as Rogers v. Missouri Pacific Rail-

road Co., supra. In addition to a “no evidence” power of re-

view over the jury’s verdict, the State courts of Texas have

the power to reverse and to remand a case, even when there

is sufficient evidence to require submission to the jury, when-

_ ever, in the opinion of the Court of Civil Appeals, the ver-

dict is “against the great weight and overwhelming prepon>

derance of the evidence.” Chief Justice Robert Calvert, “No

Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38

Tex. L. Rev. 361;‘e.g. In Re King’s Estate, 150 Tex. 662, .

244 S.W. 2d 660. This power exists because the Texas Con-

_ stitution, unlike the Seventh Amendment to the United

States Constitution, provides that the Court of Civil Ap-

peals, not the jury, has the final power to decide all fact

"questions. Tex. Const. Art. 5 Section 6. An unsuccessful effort

has already been made to apply the Texas standard to

F.E.L.A. cases. In the case culminating i in. Deen v. Hickman,

358 U.S. 57, this Court made it clear that the federal stand-

ard, not the ‘Texas standard, applied in F.E.L.A.- cases.

Nevertheless, Petitioner invites this Court to use the state

standard as a device to’ supplant the jury’s function in

_ FELLA. cases tried in Texas courts.

CONCLUSION

For the foregoing reasons, the Petition for Writ of Cer-

- tiorari should not be: granted.

Respectfully submitted,

} Jack W. ‘Fiock,

Member of the Bar of the Su-

preme Court of the United |

States, ~<

Attorney for Respondent.

Of Counsel: ? 7

Crype W. Fiwpes,

GALLOWAY CALHOUN, JR.,

RAMEY, BRELSFORD,

FLOcK & DEVEREUX,

Citizens First National Bank — ie

P. O. Box 629, | :

Tyler, Texas 75702. | ca

CERTIFICATE OF SERVICE —s_—.:

This is to certify that on the [3 day of October, 1965, a

true and correct copy of the Brief in Opposition was served

upon the following parties at their last known addresses:

McLENDON & TYLER, Tyler, Texas, 3

SCHMIDT & GARRETT, 1307 Sterling Building

Houston, Texas 77002,

MABEL GREY HOWELL, 702 Sterling Building

Houston, Texas 77002, Attorneys for Petitioner — |

by placing same in the United States Mail, properly ad-.

‘dressed, postage prepaid, CERTIFIED MAIL.

Tor é

eeeege” Sr <F eeee ached Boarh_

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