Petition for Writ of Certiorari — Kansas City Southern Railway Co. v. Johnston

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RISRARY:. | | Sm Rerian uit, U3

SUPREME COURT. UG; (\. *Fitep

2 ES | SEP ay 1987

oer iia eeerecrecrer sees ani:

_. ‘IN THE SUPREME. COURT OF «

. THE UNITED STATES OF AMERICA

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xo. 65.2)

KANSAS CITY sebabaimescei RAILWAY CO.,

7 : - oe ee | Petitioner “

—Against—

PAUL JOHNSTON

: Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT AND OPINION OF THE SUPREME

COURT OF THE STATE OF OKLAHOMA

: Crype J. Warts

t : '~. 219:Couch Drive

Oklahoma City, Oklahoma

King Law Brief commence mxcuanez stps., OXLAHOMA CITY —- Cz s-ases :

—

Co oe

ve : ee

Appendix A ...%--5+++e7: eee cieeews fecbvecwoee .

U. S. ConsTITUTION, AMENDMENT XIV, Sec. 1... Bares }

OKLA. ConstiruTioN, MISCELLANEOUS} 3 nat

Art. XXIII, SEc. Pere ns, eee See

5° pynvE 28; USC 1257, Sec. (3)--- agrees 2

Tirie 28, USC 2101 (c), (f) Eee Paes Sk. 2

euedl HE Eccl ef oamen

Tite 45, USC, Cuar. 2, Par. 51 pare ara caged: ©

Me | Tirre, 45, USC, Cuar. 2, Par. 53. ah ake wen oes Oe a

“Appendix B .....--+- Rees errors ears baleen wa

_ Portions of Pleadings; Options

Judgments and Decrees

Plaintiff's Petition, Paragraphs IV, V, VII, and IX .... 7

Title 45 US.C.A.; Sect. 2... 0-eee errr pereoer ct ie ae

Title 45 U.S.C.A., Sec. 2 ..--+++> reer ep ieee

Anéwer of Defendant Railroad, : Sap ane

Paragraphs I, |) Se, Be odeseseeweees 9A.

|‘ Title 45 USAC, Sec. 2 0... +--+: Core ee etc ore ar

= Motion to Strike ...---. Re eton ae rrr saeteisectsoeeen

“Answer of Defendant: cay

Pre Trial Conference Order of Court

Sustaining Plaintiff's Motion to Strike .....--- wees 13A

27 Stat. 531; 45 USCA, S 1, ¢t 8 eaieeeunenvnes ATA

\ .. \ ;

IN THE SUPREME couRT OF ao

THE UNITED STATES OF AMERICA oe

WU cio ckccves

ie a ty

KANSAS CITY SOUTHERN RAILWAY CO.,

| | . Petitioner

| —A gainst—

PAUL JOHNSTON:

’ Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT AND OPINION OF THE SUPREME °

COURT OF THE STATE OF OKLAHOMA | bitte

ana

APPENDIX A

CONSTITUTIONAL PROVISIONS AND STATUTES.

INVOLVED .

. U.S. ConstituTION, AMENDMENT VII—Civit TRIALS |

In Suits at common law, where the value in controversy ©

shall exceed twenty dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury, shall be otherwise re- |

_. examined in: any Court of the United States, than seconding |

- to the rules of the common law.

WeSYR7e

° ~ 2

U. S. Constitution, ane XIV, SECTION 1. Citizen-

ship; Privileges and Immunities; Due Process. ie a

4

' : é

Section 1. All persons bere or naturalized in the

. United States, and subject to the jurisdiction thereof, are --.

citizens of the United States and of the State wherein

they reside. No State shall make @r enforce any law. which

. shall abridge the privileges or immunities of citizens of :

.the United States; nor shall any State depriveany person.

‘of life, liberty, or propérty, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws..

OKLAHOMA ConstiruTion—

MisceLLANEous; Art—XXiIil, ‘Serio. 6, CONTRIBU-. .

* TORY NEGLIGENCE.

.

The defense of contributory, negligence or of assumption

of risk shall, in all cases whatsoever, he a question of fact,“and -

shall, at all times, be left to the jury. |

TITLE 28, USC 1257, om: (3): State Courts; —

. Certiorari:

Final judgments or decrees rendered by the highest

court of a State-in which a decision could be had, .may be.

reviewed by the negreme Court. “as follows:

(3), By writ of certiorari, sie the validity of a treaty

or statute of the United. States is drawn in question or

where. the validity of a State statute is drawn in question °

. on the ground of its being repugnant to the. Constitution,

treaties or laws of the United States, or where any title,

right, privilege or immunity is specially set up or claimed

under the Constitution, treaties or statutes of, or com-.

mission held or authority exercised under, the United

+» States. June 25, 1948, ¢. 646, 62 Stat. 929.

eR RT ene PEERS mo ER ON

oe op Biss 3

eres TITLE 28, USC 2101 (c); Af): : Time for asic or Certiorat

| eee ae

| haan . (c) Any oie appeal or any writ of certiorari in-

¢ tended to bring any judgment uy decree in a civil action,

! | » °° Suit or proceeding before the Supreme Court for review

oe '- shall be taken or applied for. within ninety days after the

entry of such judgment or decree. A justice of the

Beste Supreme Court, for a’good cause shown, may extend the

time for applying fora writ of certiorari for-a period

not exceeding sixty days. ah

o- foe : 4

, -

. (f) ins any case in which the final judgment or decree

of any court is subject to.review by the Supreme Court

on writ of certiorari, the execution and enforcement of ,

such judgment or decree may be stayed for a reasonable ~

time to enable the party aggrieved-to obtain.a writ of

: ‘certiorari.from.the Supreme Court. The stay may’ be

{ granted by a. judge of the court rendering the judgment .

| ae or decree or by a justice of the Supreme Court, and may

_ be .conditioned+on. the giving of, security, approved ‘by

such judge or justice, that if the aggrieved party fails to

: _. make application for such writ within the period allotted

. therefor, or fails to obtain an order granting his applica-

) tion, or fails to make his plea good in the Supreme Court,

he shall-answer for all damages and costs which the other

rly. ‘party. may sustain by reason of the stay. June 25, 1948,

‘ c. 646, 62 Stat. 961; May 24; 1949, c. 139 § 106, 63 Stat. -

3 104. - f

a .

4 sf

_ REVISED — OF THE : ilicieaiie ii OF THE Umirep:

STATES, PART 7.

‘PART V. JURISDICTION ON’ WRIT OF

. CERTIORARI

19

Considerations Governing Review on Certiorari

1. A review on writ of :certiorari is not a matter of

right, but of sound judicial discretion, and will be grant-

ed only where ‘there are ‘special and important reasons

therefor. . The following, while neither controlling nor -_

fully. measuring the court’s discretion, indicate the char-

acter of reasons which will be considered:

(a) Where a state court has decided a federal ques-

tion of substance not theretofore determined: by this

court, or has decided it in a way probably not in accord

with aca decisions of this court.

(b) Where a court. of appeals has rendered a deci-

sion in conflict with the decision of another court of

appeals on the same matter; or has decided an import-

_ ant state or territorial question in a way in conflict with

applicable state or territorial law;.or has decided an im-

portant question of fedei | law which has not been, but

. ‘should be, settled by this court; or has decided a federal

question in a way in conflict with applicable: decisions of -

this court; or has so far departed from the accepted and

usual course of judicial proceedings, or so far sanctioned

such a departure by a lower court, as to call for an exer-

cise of this court’s power of supervision.

;

Tirte 45; USC, Par 2. Federal Employees Liability Act;

Faulty Safety Appliances; etc. foe | —%

§ 2. Automatic couplers

It shall be unlawful for any common carrier engaged

in interstate cémmerce by railroad to haul or permit to be

hauled or used on its line any car used in moving inter-

state traffic. not equipped with couplers coupling auto-

matically by impact, and which can be uncoupled without -

the necessity of men going between the ends of the cars.

Mar. 2, 1893, c. 196, § 2,27 Stat. 531. « 3

Titi: 45. USC, CHAPTER 2, PAR. 51. Federal Employees

*

Liability Act ©

Every common carrier by rajlroad while engaging in

‘commerce between any of the several States or Territor-

ies, or between any of the States and Territories, or

between the District of Columbia and any of the States or -

Territories and any foreign nation or nations, shall be

liable in damages to any person suffering injury while he -

is employed by such carrier in such commerce, or, in case

of the death of such employee, to his or her. personal

representative, for the benefit of; the surviving widow or —

husband and children of such employee; ‘and, if none, °

then of such employee’s parents; and, if none, then of the

next of kin dependent upon such employee, for such injury

or death resulting in whole or in part from the negligence

of any of the officers, agents, or.employees of such car-

rier, or by reason of any defect or insufficiency, due to

"its negligence, in its cats, engines, appliances, machinery,

track, roadbed, works, boats, wharves, or other equip-

ment. :

Any employee of a carrier, any part of whose duties as

such employee shall be the furtherance of ‘interstate or

foreign commerce; or shall,.in any way directly or closely

and substantially, affect such commerce as above set forth

shall, for the purposes of this chapter, be considered as °

being employed by such carrier in. such commerce and

shall be considered as entitled to the benefits of this chap-

ter. Apr. 22, 1908, c. 149,81, 35 Stat. 65; a? 11, 1939,

~ 685, $ 53 Stat. 1404.

TITLE 45, USC, CHAPTER 2, Par. 53. Federal Employees .

_ Liability Act, Contributory Negligence.

‘In all actions hereafter brought against any such com-

mon carrier by railroad under or by virtue of any of the

provisions of this chapter to recover damages for per-

sonal i injuries to an employee, or where such injuries have

resulted in his death, 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: Provided, That no such employee who

may be injured or killed shall be held to have been guilty

of contributory negligence i in any case where the violation —

by such common carrier of any statute enacted for the

safety of employees contributed to the injury or death

of ‘such employee. Apr. 22, 1908, c. 149, § 3, 35 Stat. 66.

APPENDIX B

PORTIONS OF PLEADINGS, OPTIONS

_ JUDGMENTS AND DECREES

PLAINTIFF'S PETITION, PARAGRAPHS IV, V, VIL.

and IX: .

-

This suit and cause of action is ‘beowie pursuant to the

\ Safety ApyGence Act, Title 45 US.C.A,, Sec. 2; towit:

“Tt shall be ‘aol for any common carrier engaged ,

.- in interstate commerce by railroad to haul ‘or permit to

be hauled or used on its line any car used in moving

interstate traffic not equipped with couplers coupling

. automatically by impact and which can be uncoupled with-

out the een of men going between the ends of the

cars.’

Pursuant. to the foregoing

. V.

Pursuant to the foregoing statute and the. decisions of

the United States Supreme Court, the defendant, at all times

mentioned herein; had the absolute duty to haul or use on its

_ line cars equipped with couplers which, after a secure coupling

was: effected, would remain. coupled until set free by some

purposeful act of control.

. . , Se '

On March 16, 1963, at about 8:05 A.M., plaintiff was

performing his duties as a conductor on defendant’s freight

train designated as. Extra 102 North. Plaintiff took up his

duties at DeQueen, Arkansas, in defendant’ s caboose No. 367.

Defendant’s train at. the above mentioned time and place

consisted of i124 cars’ securely coupled and loaded with 6,919

tons of ore and other merchandise being transported in inter-

state traffic

VIL. a

As defendant’s train, Walia io2: North, nietihel a

point known as Rich Mountain, Arkansas, a knuckle broke on

car No. -79514-XC-KC which car was located approximately

14, cars from the head end. The knuckle on this car was re-

paired and securely coupled to the rest of the cars. An at-

tempt was-then made to move approximately 85 «ars of de-

fendant’s train which was located on the south side of Rich

Mountain. On this occasion, a knuckle broke-on car No.

DSDX-5040-XB- KC, which car was about 27 cars from the

engine. This knuckle was subsequently repaired and, after

| various switching movements, the cars-in defendant’s train

were again securely coupled..

‘ VII

' Denfendant’s engineer started the train down Rich Moun- |

tain and reached a speed of approximately 045 miles per

schon “thin i nnn ie att mt Ra SASS RT

9

hour upon approaching Howard, Arkansas. When defendant's

engine reached a point located about Milepost 363 the engine |

crew on-defendant’s train Number 15, standing on an adjoin-

ing track, warned plaintiff's crew that defendant’s train had

broken in two units about 30 cars ahead of the caboose. As a!

direct and proximate consequence of the cars becoming un-

coupled, the brakes at the head end of the train went into

emergency at the same time the engine’s dynamic brakes were

being applied. This caused the head end to d to slow down-more—~

_rapidly-than-the “rear -end of defendant's tre s train with the result

that the rear unit collided with the head end with great force

and violence. As a result of the collision, plaintiff sustained

severe and permanent injuries as hereinafter more specifically

described. ey

| IX.

The aforesaid occurrence and resulting injuries to plain-

tiff were directly and proximately caused by the defendant’s

breach of the Safety Appliance Acts, particularly Title 45

U.S.C. A. sec. 2.

‘ANSWER OF DEFENDANT RAILROAD,

PARAGRAPHS II, III, IV. V:

nae I. |

This defendant denies that its equipment was not equip-

ped with couplers that were automatic and would couple ‘by

impact and which could be uncoupled without the necessity of

men going in between the ends of cars, and specifically alleges

10

that each and every car of the defendant had couplers auto-

matically coupling on, both A and B end of all cars and by

reason thereof the plaintiff herein cannot allege* any failure —

of this deféndant. to comply with the Safety Appliance Act.

That further it was not necessary that the plaintiff go in

between any cars. of ‘this Railroad and. that, therefore, the

Safety Appliance Act becomes: inapplicable: to the i injuries and

damages claimed by the plaintiff herein. | :

II.

For further answer and defense, this dalenincd alleges

and states that they were in nowise negligent in the operation

_of this train or in the conduct of their. business and more in

ie particular i in any breach of the Safety Appliance Act, particu- |

larly Title 45 USAC, Sec. 2, and _thérefore, defendant cannot

be responsible to plaintiff i in damages under said Act.

ae

| For further -answer and defense, this defendant alleges

that if plaintiff was injured, which is not admitted, that it was

due to an unavoidable casualty or misfortune, over. which this

defendant had no control, and that this defendant acted in all

premises without negligence, by.reasori of which unavoidable.

casualty the plaintiff cannot recover herein. |

V.

‘For further answer and defense, this defendant alleges

that it-was confronted with’ a sudden emergency, and that

‘in its action in said sudden emergency it acted as an ordinary

- be ncens y ? oa ; : ase ? ; h

__prudent-person would do under similar and same circumstan-

fel Oat ree ces, by reason of which the plaintiff cannot recover herein.

| ' WHEREFORE, defendant prays. that plaintiff take |

. nothing by reason of his petition filed herein and this defend-

ant go without cost. 3

“

Looney, Watts, Loonéy, .NICHOLs & JoHNSON

By Burt Johnson conte

(CERTIFICATE OF MAILING ATTACHED) °

. Filed in LeFlore County, Poteau, Okla. July 8, 1964

Bill Rockwell, Court Clerk by Idus Baird, Deputy.

IN THE DISTRICT COURT FOR LEFLORE COUNTY, _

"ss STATE OF OKLAHOMA. ti.

ee - No. 18654

4 Fees ratte ce Pau Jounston,

| Plaintiff

VERSUS

THE Kansas City SOUTHERN RAILwaAy CoMPANY,

a Corporation,

Defendant.

|MOTION TO STRIKE

Comes now the plaintiff, Paul Johnston, and moves the

: Court to ‘strike the following matter from the answer of the

defendant’ filed herein:

1.. The last sentence of paragraph ‘”. which reads as

follows.

“That furthet it-was not necessary that the plaintiff go

between any cars of this Railroad and that, therefore, the

Safety Appliance Act becomes inapplicable to the injuries

and damages claimed by the plaintiff-herein.” —

12

: All of peer HI, which reads as ‘dle:

“For further answer and defense, this dchvnitinn alleges

and states that they were in no wise negligent in the

operation of this train or in the conduct of their business

and more in particular in any breach of the Safety. Ap-

- pliance Act} particularly Title 45 USAC, Sec. 2, and

' therefore, defendant cannot be responsible to plaintiff i in

- damages under said act.”

. All of paragraph Iv, which reads as follows:

.“For further answer and defense, this defendant alleges -

that if plaintiff was injured, which is not admitted, that

* it was due to an unavoidable casualty or misfortune, over

which-this defendant had no control, and that this de-.

fendant acted in all premises without negligence, by

reason of which unavoidable casualty the plaintiff cannot

recover herein.”

4

. All of paragraph V, which reads as follows:

“For further answer and defense, this defendant alleges . ~

that it was confronted with a sudden emergency, and that

in its action in said sudden emergency it acted as an

‘ordinary prudent person would do under similar and,same

circumstances, by reason of which the plaintiff. cannot

recover herein.” :

VARNER & MILLER

By Dick Miller II,

Attorneys for the Plaintiff

FILED IN LEFLORE COUNTY ee.

- POTEAU, OKLAHOMA | gare \:

July 13, 1964 °

(Certificate of mailing attached).

BILL ROCKWELL, COURT CLERK

ogi es ee cea fc . Pa

Bde ME DE Fito es : 13 ;

: "ANSWER OF DEFENDANT:

‘PRE TRIAL CONFERENCE ORDER OF COURT .

SUSTAINING PLAINTIFF'S MOTION TO. ermine :

° - ANSWER OF DEFENDANT: '

IN THE DISTRICT COURT WITHIN AND FOR ©

LEFLORE COUNTY, OKLAHOMA —

‘No. 18654 °

PAUL JounsToN, :

Plaintiff

_ VERSUS ;

Kansas City SOUTHERN RAILWAY CoMPANY, a Corporation,

Defendant ,

~~

PRE-TRIAL CONFERENCE ORDER

On this 12th day of February, 1965, the above cause —

_ came on for pre-trial, the Honorable. George Windham, Dis- .

“trict Judge, presiding: Messrs, Varner & Miller, Attorneys,

Poteau, Oklahoma, appearing on behalf of the plaintiff; and

Mr. Johnson, of Looney, Watts, Looney, Nichols & Johnson, :

of Oklahoma City; Oklahoma, appearing on behalf of’ the

_defendant.. |

WHEREUPON, the following ‘proceedings were had;

The motion to strike paragraphs 4 and 5 of the answer

was presented and argued to the Court.

eer.

Ft

4 pnp Dee soph it

. 14

_ THE COURT; The motion to strike is sustained. :

MR. JOHNSON: To which the defendant excepts. ~

"MR. JOHNSON: We would also like to amend our

answer. to this extent: To make the allegations that the rail-”

road was equipped with standard equipment used in the in-:

dustry that they had been used with, proven tests and com-

- petency for -the handling of train movements ¢ on this particular

railroad for a period of time. : ; o

"MR. VARNER: That's the same : inl your iis |

( Seneoenente of counsel) |

| IN THE. SUPREME COURT OF THE STATE OF

OKLAHOMA

No. 41569

THE KANsAS CITY SOUTHERN RAILWAY Company,

a Corporation. -

| Plaintiff In n Error,

‘VERSUS | : + .

PAUL JoHNsTON, eS

Defendant In Error:

SYLLABUS |

1, The sition in Sec. 2 of The Safety Appliance Acts

(27 Stat. 531, 45 USCA, § 2) against a.common carrier

“engaged i in interstate commerce by railroad” hauling or

using .“‘on its line any car moving interstate traffic not

equipped with” automatic eougeere, is not confined to

_ switching operations. ; 7

oe

“SZ H

The above. cited Federal enactment requires scouplers

-which, after a secure coupling is effected, will remain ~~

‘ coupled until set free hy some purposeful act of Control,

and the carrier’s duty to have such couplers on its cars is ©

absolute. Consequently, the trial court committed no re-

versible error ‘in overruling the defendant carrier’s ob-

jection to* that portion of: plaintiff counsel's s opening

statement. in which he so informed the jury.

Whére, as the result of train couplers’. failure to remain”

sO ‘coupled, the train separated, and there was no question

but that its conductor was ‘injured by the jolt, or impact,

from the collision between the train’s two, or more,

separated parts, and there was no proof as to the cause

of the coupler’s failure, the trial court committed no

error in sustaining said plaintiff conductor’s motion for

an instructed verdict agree - -the railway ‘company

defendant. :

.» Where the defendant company Gas not request that the

jury be given appropriate instructions as to the effect of

contributory negligence i in the presentcpse, the trial court

committed no error in omitting such instructions.

A verdict will*not be set aside on account of an irregu-

larity in the selection of the jury, absent a showing of

prejudice to the party complaining thereof:

Where, in its appeal, after a judgment based on a verdict

against it, a defendant-company complains that ,after-one |

of the jurors had indicated, on voir dire examination,

some doubt as to whether he could be’fair in his considera-

tion of the case, the court did not interrogate him to de-

-termine whether he should be excused for cause, but the

. record shows that defense counsel thereafter interrogated

him extensively, apparently satisfied himself that the

juror would be fair, and did not, challenge him perempto-

rily, the trial cotirt’s said inaction constituted no caus¢ for

reversal, in the absence of.a showing of prejudice to de-:

-fendant therefrom.

16

7. On pan’ after an ‘adverse verdict and judgment, a

defendant cannot successfully urge error in the trial

court’s permitting plaintiff to elicit from witnesses on

direct examination testimony of the same character elic-

ited by defendant on cross examination, and relied upon

. by it in attempting to establish a defense to the action

and to obtain it’s ‘new trial on the merits.

8. It is not the duty of the Supreme Court to order a. |. judg-

ment, based upon a verdict,/set aside or reduced on ap-

peal on account of assignments of error not supported

by the citation of authority, unless it is apparent, without

further research, that they are well taken.

APPEAL FROM THE DISTRICT COURT OF

LEFLORE COUNTY. |

cr Hon. GEorGE WInpDuHAM, District Judge.

Action, under one of The Safety Appliance Acts, by a con-

ductor on one of a railway company’s freight trains, as plain-

tiff, against the Company, as defendant, for damages on ac-

count of his personal injuries from a collision of some of the

train’s cars, after they became uncoupled. After judgment

: based on a verdict: for plaintiff, defendant appeals. . - |

AFFIRMED

Looney, Watts, Looney, For. Plaintiff In Error,

NICHOLS AND JOHNSTON,

Oklahoma City,

VARNER AND MILLER, For Defendant In Error.

Poteau, ear

. BLACKBIRD, Ie

This appeal involves an action for damages for personal - ~

injuries suffered by defendant in error, hereinafter referred to

17

as “plaintiff”, in an accident on the main line of plaintiff in

error’s railroad, allégedly caused from the latter’s violation

of section 2 of one of the Acts Of Congress known as “The >

Safety Appliance Acts” (27 Stat. 531; 45 USCA, S 1, et 8).

gs

On the date of the accident, March 16, 1963, plaintiff -

wut tailway train conductor for plaintiff in error, herein-

after referred to as “defendant”, on said defendant's freight

train designated as “Extra 102 North”. The train, composed |

of seven diesel unit locomotives, 124, freight cars, and a ca-"

boose was en route from Mena, Arkansas, to Heavener, Okla-

-homa. Plaintiff boarded the train to start his tour of duty

at DeQueen, Arkansas, just before 3 A.M. that day. When

the.train had traveled in a northerly. direction and was de-

» scending Rich Mountain about two hours later, some of its é

cars became uncoupled at a point, or points, behind the loco-—

motives and ahead of the caboose, thus separating the train

into at’ least two sections. When this occurred near a com- -

munication station on _ said- railroad, known as “Howard,

Arkansas” » emergency braking of the first section, or head

end,. of the tiain, occurred, and the air brake hose line having ©

severed itself. where the separation of the train occurred, the :

Jast section of the train sped down the steep grade and collided.

with the train’s head section. The impact of the collision jolted

plaintiff out of his seat in the caboose and injured’him.

18

When plaintiff thereafter commenced’ this action for

damages against defendant in (1964, his petition alleged,.

among other things, that under the Safety: Appliance Act,

supra, and “‘the decisions of the United States Supreme Court”,

defendant had the “absolute duty” to use on its line cars

‘ y

aa

ye equipped with couplers that “would remain coupled until set

| free by some purposeful act of control,” and further alleged -

that the accident and his resulting injuries were directly and

_ proximately caused by defendant’s “breach” of said Act, par-.

. ticularly its section 2 or “automatic coupler” section.

| Plaintiff's petition also alleged that’ his injuries from the

collision consisted of the aggravation of a previous lumbar

spinal injury, injuries to his spine, disks, spinal cord, hip, right

leg and testicle, ligaments, nerve- roots and muscles. In_ his

" petition, plaintiff prayed for the lump sum of $200,000.00 for .

loss of earnings,-hospital and medical expense, past and future :

pain and suffering, permanent impairment, and loss of earning

capacity. | °

Defendant’s answer consisted of a qualified general de-

nial, and, in paragraph “II” ” thereof, it denied that the cars of

the train were = minds with automatic couplers that would

| operate by i impact and could be uncoupled without men going

between the cars to do this, and affirmatively alleged that all

- of the cars were so equipped, and that, for this reason, the |

_ Safety Appliance Act was inapplicable to the accident. In

| paragraph “III” of its answer, defendant further alleged, on

i

:-% 19

the basis of its denial.of negligence in the operation of. the

_ train and conduct of its business and more particularly i in any

breach of the Safety Appliance Act, that- said Act was not .

apprycabie: In paragraphs “TV” and “V” of its Answer, de-

fendant alleged: that plaintiff's injuries, if any, were due to

an unavoidable casualty or misfortune and that, under the

circumstances. of the accident; i it was confronted with a sudden

emergency.

At the pre-trial conference on the case, ‘the Court, on

plaintiff's motion, ordered paragraphs IV and V stricken

from defendant’s answer, and it was stipulated, among other

things, that plaintiff had a life i of ‘ 67 years.

When the case finally came to trial in March,. 1965,

)

* plaintiff's counsel, during his opening statement, A pews the

jury-that, the court would tell them that, under th Safety Ap-

pliance Act, all the plaintiff had to prove was that the train

came apart, and, .as a result, plaintiff was injured. He con-

tinued his statement in the following words:

We den’ t has to show why, as to whether or not the

~ Railroad will be permitted to explain why, that’s a-ques-

tion for the Court. But whether they do or don’t, we

would like you to bear in mind this is a case of absolute

liability by the Railroad and has resulted in Mr. om

ston’ s‘being hurt,—” -

At this point, counsel for defendant objected ei plaintiff's

counsel was “mis-stating a point of law”, but the Court over-

ing statement.

20

ruled the objection, and plaintiff's counsel continued his open-

Whether all of the train’s 124 cars were pulled up the

south side of Rich Mountain i e train,.or section, does not

appear absolutely clear from the evidence. There is an indica-

_ tion in plaintiff's testimony, however, that the length of the

train was “doubled” when it left a point just below; or north,

of the top of said mointain referred to as “North Switch”; -

but, be that ‘as it may, when the train left that point to con-

tinue its trip down the north side of the mountain, all the cars

were.“‘coupled up’ ” (pr resumably as one train), according to the

ny testimony of Milburn Duncan, who was acting as the. train’s

“Rear brakeman or flagman”. It was established that; as the

train left north switch, while Duncan was standing on the .

road bed on one side of the train, and plaintiff was standing

on the other side, they made a “running inspection” of the

train as it was propelled past them to see. that all of the cars -

were coupled before again boarding the train at its rear end,

or caboose, for the rest of the journey . .down the mountain,

toward Howard. As the separation occurred: only 6 miles,

farther down the track, without any eye witnesses as to its

cause, and the cars were all found to be coupled back together .

when the train stopped . after the collision, defense counsel

interrogated plaintiff and ‘other train crewmen testifying as

witnesses for him, as well-as a Mr. Malone, who was the only

?

~

Es

21. :

witness called by the defense, in an effort to elicit an axplana-

tion,as to what caused the cars to come uncoupled. The witnes- |

ses testified as to various things that could have happened, as

the train proceeded down the mountain that night possibly

have caused the couplers to uncouple, but there was no evi-

dence’ whatsoever that any of these things did happen. .

By. the: cross examination of most of the witnesses, de-

fense counsel made the proof positive that the separation, or’

, uncoupling, did not occur during-any switching operations, and

defendant's theory that the Safety Appliance: Act therefore

~ did not apply, was one of the stated grounds for the demurrer

to plaintiff's evidence it thereafter interposed. After this de-

murrer was overruled and the members ofthe jury, at defend- |

ant’s request, had been taken to a railroad side track to view

couplers on a railroad car there, and defendant’s only witness,

Malone, had testified, and defendant had rested, the court

sustained a motion by the plaintiff, over defendant's objec-

tions, to instruct the jury that, under the evidence as presented,

the defendant, was liable ‘‘for whatever damages the plaintiff

may have sustained ....” Accordingly, the case was thereafter

submitted to the jury for the sole purpose of fixing the amount _

of plaintiff's recovery. After deliberating this matter, the jury —

returned a general verdict in plaintiff's favor for a lump sum

of $79,500.00, and judgrnent was rendered in accord there-

with. After the’ overruling of its motion fora new trial, de-

fendant perfected the Present appeal. '

22

The trial court’s claimed errors referred to in the first

two of defendant's propositions for reversal, and a part of its

third one, are its overruling of defendant's objection to the

hereinbefore quoted portion of plaintiff counsel’s opening

statement and said court’s ruling on plaintiff’s motion for an .

instructed verdict, which had the effect of fixing defendant’s

_responsibility for the train’s separation and subsequent “run-

in”, or collision, and plaintiff's resulting injury, without af-

fording any opportunity for a jury determination as to what

caused the offending couplers to come uncoupled. Defendant’s

grounds for claiming error in these rulings may be,summarized

as follows: .

(1) The Safety Appliance Act was not intended to cover

the failure of automatic couplers to remain coupled dur-

ing a train’s movement on a main line.in transit between

two cities on a regular run, and having nothing to do

with switching operations. in

(2) After the court and jury heard testimony from the

plaintiff, as well as his witnesses, Ray and Duncan, and

the defense witness, Malone, that freight cars may be-

come uncoupled from a draw bar breaking, or..being

pulled out, or from’ “‘busting’”’ knuckles, or pins slipping, -

and on some occasions this has resulted. from pin lifters -

being activated from various causes like an angle bar or

something else falling off of a car and that, or a-rock,

animal, or some other foreign object being flipped up

from the road bed by the train’s wheels and hitting the

pin, or air hoses breaking and swinging around ‘and :

striking the pin, or by a rough track causing cars to

bounce up and down and pins to raise up, the court should

have allowed the jury to determine the cause of the

23 -

uncoupling and train separation, as a matter of fact,

rather than determining, as a matter of law, that defend- '

ant was liable, as if the offending couplers were defec-

tive, regardless of the possibility of their having become

uncoupled from some cause for which defendant could

‘not. be held responsible. ,

Defendant's arguments are both novel and unsound. It’s cita-

tiens of cases involving switching operations conspiciously

omit Minneapolis & St. Louis Railroad Company vs. Gotschall '

244 U. S. 66, 375 S. Ct. 598, 61 L. ed. 095, cited by plaintiff. -

The Gotschall case involved the trip of a freight train trans-

porting interstate commerce merchandise from Albert Lee,

Minnesota, to Minneapolis. ( In connection with defendant’s

contention ‘that the Safety Appliance Act does not cover

“through” trips; as distinguished from ‘ ‘switching operations” ;

see the discussion of the Gotschall.and other cases in Kernan

vs. American Dredging Co.; 355 U.S. 426, 78 S. Ct. 394, 2

'L. ed, 2d 382, 389-392). As far as any of the official reports

of that case reveal, that trip ‘was not a, . Switching operation, |

and there is no intimation that it was ever so considered. In .

its reply brief, defendant says that in the Gotschall Case, the

- United States Supreme Court “looked with favor” upon ‘the -

question of the defendant Railroad’s responsibility for the

involved brakeman’s death being submitted to a jury. When .

that case was first tried by a Minnesota district court, a verdict O

was directed for the defendant railroad, but apparently that

court set aside the directed verdict and granted plaintiff a

new trial, which said ruling was affirmed in the first appeal of

24 i

:

the case. See Gotschall vs. Minneapolis & St. L. R. Co., 125

- Minn. $25, 147 N.W. 430. After a second trial, in which the —

_ case was submitted to a jury and a verdict was returned for the

plaintiff, the Railroad again appealed. See womens vs. Min-

neapolis & St. L. R. Co., Minn., 153 NW. ‘120° The last

cited report reveals that the deceased brakeman’ § death’ was

‘attributed to the train’s coming apart, because of the circum-

stance that his body was thereafter found “several car lengths

south of the north end of the rear portion of the separated

train... ..’ ” Tf the evidence connecting the brakeman’s death

with the train’s separation was purely circumstantial, that was

reason enough (aside from the question of the Railroad Com-

pany’s responsibility for the train’s coming apart) for sub- |

mitting that ¢ase to a jury. But, here, that is not the situation.

Here chore is no question, or issue, of plaintiff's having been

injured as a result of the separation of Extra 102 North. | |

This was proved by uncontradicted, direct evidence, and was

not merely a matter that might, or might not, be reasonably

inferred, from circumstantial evidence, by a jury.

‘Nor was there any question, or issue here of defendant’s ©

liability to be submitted to the jury, because of different con-

~ clusions that might have been’ drawn from the evidence as to

_ the cause of the couplers’ failure to hold, or, remain closed,

at’all times after the train left North Switch. Plaintiff relies’

heavily on O’Donnel,vs. Elgin, Joliet & E.'R.:Co., 338 U.S.

384 S. Cr. 200, 94 L. ed. 187, in which the court held:

i s

.

25

“The Safety Appliance Act (42 USCA § 2), which makes.

it unlawful for a common carrier engaged in interstate

-commerce.to use cars ‘not equipped with couplers coupling

, automatically by impact, and which can be uncoupled

“without the necessity of men going between the end of thé

car’, requires couplers which, after a secure coupling is

effected, will remain coupled until set free by ‘some pur-

ones act of control. ”” (Emphasis added). |

In the process of reaching its "announced conclusion - “an the :

O’Donntll Case that, as to a claim based on the Safety Ap-

: pliance- Act (as Johnston’ $ petition in this case shows his i is—

. without any allegation of negligence) the plaintiff is “entitled

- to a preemptory instruction” that, to equip a car with a coupler .

that breaks, is a violation of the Act, which renders the de-

fendant’ railréad liable for injuries approximately resulting

therefrom, | the court said:

‘ae defendant cannot escape ‘liability for .a coupler’s

inadequacy by showing that too much was demanded of

it, nor by showing that while the coupler broke it had

been properly manufactured, diligently inspected and: ~

‘showed ne visible defects. These circumstances do ‘go to

the question of negligence; but, even'if a railroad-should

explain away its negligence, that is not enough to explain

away its: liability if it has-violated the Act.”

In a footnote to the quoted statement, the Court es said:

“We do not say that a railroad may never effectively

defend under the Act my showing that an adequate coup-

ler failed to hold because it was broken or released\

through intervening and independent causes other than \.

_ its inadequacy or defectiveness ; such, for example, as the Ke

work of a saboteur. * **,."" em

\

F : : \

! ‘ ;

|

/

/

26

Defendant seizes upon the quoted language in the footnote to

support its position that the testimony of the witnesses, Ray,

ny a. M alene, above referred to, was sufficient evidence

t e couplers i in this case failed to remain coupled because

of causes independent of, or aside from any inadequacy, or.

defectiveness, i in them. The testimony referred to was not to

the effect that the couplers in this case failed to remain coupled —

_because of any circumstance mentioned i in said testimony that

might possibly cause a failure. That testimony merely indicated

- some of the things that could cause couplers to open, or come

uncoupled, or had been learned to have caused uncoupling i in

other instances. There was no “evidence that -any such thing

did happen in this case. In this, it differs from New York a

C.& St. R. R. Co. vs. Affolder (USCA., 8th) 174 F. 2d 486,

in which there was evidence of the actual existence of more °

than one situation which could have caused the Pennsylvania

car and the Rock Island car pot to couple. It also differs from )

_ Carter vs. Atlantic’ & St. 4.-B. R. Co., 338 U.S. 430; 70 S.

Ct. 226, 94 L. ed: 236, in which there was a question of fact

as to the omen relationship, or intervening cause, between the

L & N-car’s 5 telsée to couple and the plaintiff's injury from

pulpwood i in its hold being pitched forward on him, when the

switching train later coupled with it. Under the decisions of

the Federal Courts and the United States Supreme Court, the

failure of the subject couplers on Extra 102 North to remain

coupled as this train proceeded down Rich Mountain from

(27

‘North Switch, was just as adequate proof of defendant's rail-

road’s violation of the Safety Appliance Act ‘as such couplers’.

failure to couple automatically by impact has been-held to be «

in other cases. In. this connéction see. Cobb vs. Union Railway

Company, 318 F. 24:33. These decisions are binding on this *

in cases coming under:the Act (Midland V alley Railroad Co:

US. Manios Okl., 307 P. 2d 545) as it was stipulated, and we .

have shown, this case does. In accord with them, we must -:

therefore hold that the court committed no erfor in. treating.

this case as one in which the defendant’ $ liability for the colli-

‘sion was established, ‘and in submitting to the jury only the.

questions upon which hinged the determination of a amount

of plaintiff’ s ‘Fecovery.

~

In additional argument sili t its “PROPOSITION IIT”,

defense counsel refer to portions of plaintiff's: testimony as

“evidence that he “failed to properly i inspect the train” in the

hereinbefore mentioned “ ‘running inspection” , and as evidence

that “he. failed’ to take proper precautions for his own safety

when once warned that a break in thé train existed.” They. '

; wala: that the trial court deprived defendant “of setting.

up contributory negligence even though CiidErce” of it. was

before the j jury. They also complain of defendant’s being “de- .

prived of its allowable instructiops. of contributory negligence _ .

~ in keeping with the Carter case, infra,...”._

a eS

-

28

“We are not certain what counsel means s by this statement

that defendant was deprived of “setting up” contributory

naditiinins. _If counsel means that defendant was deprived of

pleading contributory riegligence, the record does not reflect

this, because it “fails to show that defendant ever attempted to

plead contributory negligence. On the contrary, defense coun-

sel appears to have recognized all through the proceedings in

the trial court—just as did the defendant in Chicago, Rock

Island And Pacific R. Co. vs. Hawes, Okl., 424 P. 2d 6, 12,

Sehat. contributory negligence is not a complete defense in cases

- of this class and their. reference to the Carter Case brings

into focus the <— language of the Court, in that case

(94 L. ed. 242) :

“e

™,

ee

“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 em-

ployee .. .”.45 USCA., 843 FCA -title 53 35 Stat. 66

‘ch. 149. The negligence of the petitioner and that of the

railroad should have been submitted to*the j jury, and in

the light of this comparison a verdict reached that would.

do justice to all concerned. SeeTiller vs.. Atlantic Coast

Line R. Co,, 318 U.S. 54,65, 87-L. ed 610, 616, 63 S.

Ct. 444 edd 967 (1943).” (Emphasis added).

It is-:made doubly certain from the above that if the testimony,

. defendant refers to, did show any contributory negligence on

the part of plaintiff in the matter of his injury, this would

_ have demonstrated no error in the trial court’s sustaining .

-

~~

‘\ . . ; ?

. o od

29

| plaintiff's motion for an.instructed verdict ort the matter of

defendant’s liability. But the last part of the above quotation

from the. Carter Case is obviously what counsel refers to in

their complaint that defendant was deprived of its “allowable

instructions . . ”. Counsal surely know, however, that the .

“allowability”, or propriety, of certain instructions in certain

kinds of cases does not mean that courts commit reversible

| error if they do not give them. Here the record reveals no

request by defendant for any instruction to the effect that

| plaintiff's damages should be diminished by the amount of |

negligence, if any, the jury found attributable to him; and, as .

far asthe record shows, defendant’s only objection to any of

the court’s instructions was expressed in the following general

terms : ‘Now as to the instructions, we do object and except to

the instructions . . - in light of the testimony that has gone

| before the jury, that they contain only’partial instructions . . .”.

Here we have a situation analogous to the one in the Chicago,

Rock Island And Pacific R. Co. Chae, sett where said Rail-

road Company defendant allowed that case to be submitted _

to the jury without any request for-an instruction of the “pres-

ent worth” of plaintiff’s future damages, yet complained, on

appeal, of the trial-court’s failure to give any such instruction.

There, while recognizing that this Court had said that such

instructions are proper where such damages are sought, we

applied the rule that a request therefor is “‘a riecessary predi-

a

30

cate“ for consideration of such failure, or omission, when

assigned as error on appeal. We think the same appellate rule

| should apply to defendant’ s complaint of the trial court’s omis-

_ sion here, as well as to defendant’s-additional complaint, under

‘its Proposition III, that the court gave its instructions num-

bered “a, “a , ona 6", without telling the jury that plain-

'tiff’s recovery should be diminished because he had not under-

gone an operation ‘suggested by one of his déctors, In accord

with the foregoing, we hold that defendant’s arguments under

its first three propositions present no cause for reversal.

Defendant’s argumients under its “PROPOSITION yy?

pertain to. the manner in which the ‘jury was selected to try

the case. Its first complaint concerns selection of the panel as

a whole. Of the total of 100 persons summoned for jury duty,

only 38 appeared, and defense counsel moved to quash the

| panel on the ground that, it was “‘not duly constituted accord-

ing to statutory requirements . . .».”’. Of these 38 persons, the

37th and 38th were a Mr. Anderson and a Mrs. Triplett. De-

fense counsel says that Mr. Anderson first entered the court |

room whilé the rest of the panel was being sworn, then he was -

sworn separately, and that Mrs. Triplett did not arrive there |

until shortly thereafter, and was also sworn separately. Coun-

sel also says that when the clerk started selection from these

thirty- eight persons, twelve of them to be seated and undergo

voir dire examinatiorf, the first two names he called were °

those of Mrs.. Triplett and Mr. Anderson, respectively. When

-_:

all twelye had taken their seats in the jury box, defendant

made the following oral motion: “. ... that the jury be quashed

_and asks that these jurors be returned to their seats ..:”. De-

fendant’s brief indicates that the ground for this motion, which

“the court overruled, was that it was obvious (from the fact

that Mrs. Triplett and Mr. “Anderson—the last two jury

panelists to arrive—were the first two that the clerk called

to the jury box) that the names of Mrs. Triplett and. Mr.

_ Anderson were not “properly distributed or shaken up with

other jurors’ names before (bejng) selected.”

Defendant next complains that, after the voir dire exam-

ination of two other jury panel members, Mr. King and Mr.

‘Jones, had indicated some doubt in their minds as to whether -

they could:be fair in their deliberations’on the case (if they, as”

jurors participated in returning a verdict therein) the court

did not interrogate them as a predicate for excusing them from

the jury for cause. Defendant also complains of having to use

one of its peremptory challenges to cause a member of the

jury panel named “Edward Killion” to be excused from jury

service in-the case. .

"In our opinion, there is no merit to any of defendant's

complaints in which it mentions the above-named jury panel-

ists. The record shows that, of these, Mr. King was excused

for ‘cause, and that Mr. Killion and Mrs. Triplett were both

excused upon preemptory challenges of the defendant. The

32

fact that Mrs. Triplett did not serve as a-juror renders -in-

applicable to defendant’ $s argument concerning her, the case

‘+ of Kansas City Southern vs. Black, Okl., 395 P. 2d 416, which ©

is the only authority, cited i in support al it. aa

Defendant’s complaints concerning the selection of +.

general panel of 38 persons, from which the jury in this case

was deprived, are no more serious than were the complaints

of the same defendant in Kansas City Southern Railway Co.

vs. Norwood, Okl., 367 P. 722, in which the original panel,

consisting of 75 persons, was reduced to 29 by the time that |

case was reached for trial. There, we recognized that under

Tit. 38 O.S. 1961 $29, and the rule in such matters, a verdict

-will not be set aside on account of an irregularity in the selec-

tion of a jury, absént a showing of. prejudice to the party

complaining thereof, and that the burden of making such

showing is on that party. While this.case differs from Carney

"vs. Chapman, 60 OkI.-49, 158 P. 1125, in that, here, the de:

fendant ased all three ‘of its peremptory challenges, thereby ~

causing to be excused from the jury one J. A. Wasson, as well

as Killion and’*Mrs. Triplett on principal, and from the stand-

point of a showing of prejudice, we do not think there is any

substantial difference between its position in this appeal and |

that of the defendant in the Carney Case. Of the five jury

panelists mentioned in defendant's argument, Mr. Jones was

the only one left on the jury when the trial commenced, whose

impartiality appears to have ever been in doubt. This arose,

33

when, in plaintiff counsel’s questioning of him on voir dire

examination, Jones. revealed that he was a retired. former

watchman and laborer for defendant, and, in answer to couin-

sel’s question as-to whether he thought he ‘ ‘could listen to

both sides and return a verdict that’s fair without regard to

your background of railroad experience”, he answered: “Well,

I don’t know whether I could or not.” The record shows that

_ later in the jury’s voir dire examination, counsel for defendant —

tested jones’ possible bias by.a rather searching and extensive

interrogation, and apparently became. satisfied with his quali-

fications. At that time, defendant had used none of its per-

emptory challenges and apparently never again had sufficient

doubt about Jones’ qualifications to challenge him. And, for:

all that the record shows, defendant’s resurgence of interest in

Jones’ qualifications did not come about until after the sub-

stantial verdict against it was returned by the jury, of which

Jones was a member. Under the principles applied in the above- |

cited. cases, it is our opinion that defendant has failed to show }

it was prejudiced by any phase of the drawing, or empanelling,

of the jury about which it now complains.

Under its PROPOSITION -IV, defendant complains of

the trial court’s admission of irrelevant testimony concerning

the length of the train, the fact that it was pulling heavy ore.

cars at its rear end, and that train separations on defendant’s

tracks had been more frequent since its trains had become so

Pe eee Se TS ee ed

34,

long (than before, when they were shorter). Defendant is

in no position to complain of the admission of such evidence —

as error. Although its counsel did object to the elicitation of"

‘ such testimony from plaintiff, and another of his witnesses,.on

direct examination, the record shows that he elicited much of

the same character of testimony himself, as evidenced by the

following excerpt from the re-cross examination of plaintiff :

«Q

"A

“O

“-.

Let me see if I have this straight—maybe it wilk help

the jury too. As I understand it, back before you came

-back from the service in ’45, the trains were-only about

70 cars, and at that time there weren't as frequent

- separations or uncoupling—is that correct?

No, sir.

But now—in the last few years I dm talking about now

—and since 1945 anyway—and let’s take it up in the

last two or three years before this accident occurred

there are three times as many separations—would you

tell the.Court and jury the reason for that, please?

Well, it is these long trains in my opinion with the»

slack in them.

Am _I to.be led to ‘understand when you get a more

severe slack out in the train it is likely to trip the

couple itself?

“n

I suppose it is possible.

In fact it is quite common isn’t it when the slack-out

is run in and caused these separations, and when they.

start back out again they break in two?

‘We break i in two. It has to be something to hit this pin

to cause it to come up.

A lS

.

4Q You say a lot of times this occurs when -you havn’t had

“A

a broken couple, but you have found that something

activated that pin? )

Yes.

“Q And it is three to one now is it, than before?

“A Well, an estimate. It is a lot worse than when we had

“QO

wad. \

=

a

“GQ.

ad. |

~~

“A

“Q

“A

a

“A

| a @)

“O

But not couplings or couples. at a switching operation?

70.car limit trains:

So my words were “‘it is not uncommon ?”

It does happen.

And no switching operations are going on when these

things happen?

No, sir.

If it does happen it is the cause of this extra train,

much longer length train, than used to be over the

other trains along with other factors that might acti-

vate them along the road?

What was the question? *.

The reason, one reason is the Jong length of the trains

' they are hauling now?

Well, it happens and didn’t happen before, so evidently

that would be the reason.

So this must be one of the conclusions we reach—it is

the long train or the kicking up of more things on the

ground or more animals hitting them?

Yes.

Yes..

A nadeenger train is about how long on the Kansas

City Southern?

Six or seven cars.”

>

36

It is obvious from some of" the above quoted questions”

defense counsel asked plaintiff on re-cross examination that

an attempt was being made to suppogt defendant’s theory that

the train separation was due to causes other than defective

couplers, and that separations from such causes were not un-

common or unusual (in contra-distinction to plaintiff's theory

of absolute liability, and that the separation itself was evidence

enough of defective couplers to make a prima facie case) and

_ that the Safety Appliance Act did not apply since the separa-

tion did-not occur in a switching operation. In Blanchard vs.

Gordon, Okl., 418 P. 2d 67S, we hold (3rd syll.) :

“Plaintiff in error on.appeal may not rely upon certain

testimony in an effort to establish an issue in his case and

* at the same time assert prejudicial error on account of

the admission of’ such evidence by the trial court.”

Our opinion in the above case contains an extensive quotation

_ from Fisher vs. Pugh, Okl., 261 P. 2d 181, a part of which is

~ as follows:

‘Most certainly it cannot be seriously urged by plain-

tiff that he is entitled to have such testimony considered

for one purpose, but that the admission thereof must be

considered erroneous for any other purpose. If the testi-

mony objected to is to be held erroneous for one purpose,

then it cannot be considered for any other purpose.

Under no circumstances can plaintiff rely upon certain

testimony in an effort to establish the issue in his case

_and then, in the same breath assert prejudicial error

based upon the selfgame evidence.,.* *,*.’.”

?

37

See also Republic National Life Insurance Co. vs. Chilcoat,

OKI., 368 P.-2d 821 (3rd syll.), Dippel vs. Hargrave, 260

Okl. 26, 240 P. 2d 1070, and Chickasha Cotton Oil Co. vs.

Hancock, Okl:, 306 P. 2d 330, 336. In view of the foregoing,

we must hold that defendant is in no position to assert error .

in plaintiff's counsel’s elicitation of testimony concerning facts

of the same general character as those about which defense

counsel interrogated plaintiff.

|

Defendant's last complaint aa its PROPOSITION ae,

is that the admission of such testimony had the effect of in-

citing ‘passion of the jury as to the general conduct and op-

eration of the railroad ... .”. Since in cases where the defend-

ant’s liability is established, and there i is nothing else to make

it appear probable that the verdict was the result of the jury’s

passion or prejudice, such probability must be indicated by a.

showing that the evidence ‘does not support a recovery as large

as the one awatfled—and defendant seems to recognize this

in its last or 6th “PROPOSITION”—the foregoing com-

plaint can be dealt with i in | conjunétion with that proposition, -

which is as follows:

“That the verdict is excessive appearing to have been

given under the influence of passion or ptejudice in the

light of the evidence and not sustained by-evidence suf-

ficient for damages in this amount.” a

-

38

In _argument under the quoted. proposition, reference is made ‘

to testimony concerning a back injury plaintiff suffered in |

1955 while working ‘for defendant, to defendant's settlement

with him for tha , and his return to work. Defense counsel

also again doen ge the’ testimony about another operation |

being ENS Yet plaintiff's back and to the fact that

no. medical bills were introduced in .evidence; and counsel

characterizes the evidence as to his loss of earnings, pain and

suffering, and disability. as having, been ‘ ‘mitigated by the

doctor’s testimony as to the relief expected by an. operation

and his then apparent ability to return to moderate work.” -

It is true that the undisputed evidence shows plaintiff

had a back ‘injury. from being thrown out of a Caboose seat

in 1955, and, after being in traction in a Ft. Smith hospital

“around a month”, settled his claim with defendant: for °

$4,692.00, plus sick benefits, raising’ this. total to about

* $5,400.00, and plaintiff returned to work “about aix months”

later, but continued having to have his back i in traction inter-

mittently until he had a disk removed by a Ft. Smith ortho-

pedic surgeon, Dr. S, in March, 1963. After a period of re-

_ couperation, plaintiff went_ back to work for defendant on

June 8, 1962, after an examination by defendant’s general

surgeon in Kansas City. Plaintiff testified, however, that, after.

that time, and until the subject accident of March, 1963, he*”

didn’t “have any difficulty” doing -his work, that he made

more money at it than he ever had before, and that he didn’t

, ee. 39 »

have any time off on accotint of his back. He testified that as’

a result of his latest injury, his back, hip, tight leg, and right .

_ testicle still hurt. It is undisputed that he has had no gainful

employment since,-and his testimony showed how his physical

condition handicapped him. in attémpting to do simple chores

like carrying water to his.cattle and mowing his lawn. Plain- -

tiff’s testimony to the effect that, in this condition, he could

‘not perform certain of thé-more strenuous tasks of a freight

train conductor was corroborated, in a general ‘way, by Dr. L,.

a Poteau examining physician for defendant, to whom plain- »

tiff’s attorneys referred him for a physical examination (in-

| “cluding the taking of X-ray pictures) about two weeks before:

: the trial. ;

Plaintiff admitted that Dr. S had expressed to him the -

opinion that another operation for his present back injury .

might be as successful as the previous one of 1962, and this

was corroborated by diréct testimony of Dr.-L, except that

the latter conditioned his opinion upon anticipated findings

_ from a series of preoperative myelograms “to prove you are

: ’

on the right track.” Dr. L. testified that removal of an addi-

tional disk from plaintiff's back would need to be preceded by |

a laminectomy. “to make a position to remove and. treatethis

injured disk.” When asked to what extent plaintiff is disabled,

Dr. L testified: | .

Dr. L. ‘forthe testified concerning plaintiff :

ne Se ae See

.

40.

“I feel until some definite treatment is had upon him he

“1S disabled to do any type of operation or unable to do

any more than look after himself. sd

“I think there, is a chance he might be rehabilitated

with surgery to where he could do moderate, reasonable

~things, but I feel his history, how he had gotten along

in the past would preclude h him to be,.say as good as new.’

| Plaintiff testified that, at the time of the subject accident’ he

was earning $750.00 per month, and his W-2 (income tax)

forms for recent years, introduced in evidence, tend to support

this testimony. Since there seems to be little doubt, from the

‘evidence, that plaintiff ‘is permanently and totally disabled

from continuing the work he has done for many years (unless

an operation may relieve him of all, or a part, of this dis-

3 ability) the total recovery he sought of $200,000.00 might, by.

multiplying his agreed life expectancy of 28.67 years by the

amount of his annual salary, be attributed solely to loss of

future earnings and earning capacity, without consideration of

any past, or future, pain and suffering. (In connection with —

the latter element of damages, see Chicago, Rock Island and

Pacific Railroad Co., vs. Hawes; supra). But the jury’s verdict

was for several thousand dollars less than half of that.amount,

‘and does not appear.to be exorbitant or unconscionable so as to

suggest, in itself, that it was the result of passion and/or

a?

pa har atimte eee at Atinrt neem asf

ee a. e

| 41

prejudice on the part of the lady. See Stevens vs. Schickendanz,

Okl., 316 P.-2d 1111 (2nd syll.). As indicated in Brady vs.

Tipton, Okl:, 407 P..2d\194, 205, “since the verdict is gen-

eral... (it) furnishes no clue as to the size of its allowance

for any of plaintiff's alleged damages . .... Defendant’ cites”

no authority in support of its argument that plaintiff’s' 1955

‘injury and his settlement with defendant in connection there-

with, and/or the testimony concerning the likelihood of his

condition being improved by another operation, should be

considered in determining whether on not the verdict and

judgment in his favor is excessive. Thus, in this respect, de-

fendant has failed to discharge its burden in. thi appeal. See

Phillips vs. Ladd, Okl., 399 P. 2d $01,.and East Basin Oil & -

_ Uranium Co. vs. Pound, Okl., 321 P. 2d 694. It is not the duty

a; this court to discover some legal theory, or basis, upon

which judgments of trial courts may be reversed or modified

on appeal.

As we have determined that none of the assignments of

error adequately presented by defendant constitute sufficient

ground for reversal of the trial court's judgment, said judg-

ment is hereby affirmed. All the Justices concur.

“a

42

PETITION FOR REHEARING BY DEFENDANT

RAILROAD and AMENDMENT TO PETITION | FOR

REHEARING:

THE Kansas CITY Sour HERN RaILway CoMPANY,

a Corporation, ae

ee et et ee eee

Plaintiff In Error, .

No. 41569

7 VERSUS

PAUL JOHNSTON, 3 ae eo

: Defendant In Error.

_ PETITION FOR REHEARING

Defendant in Error, Paul Johnston, obtained a judgment

in the District Court of LeFlore County against Plaintiff in

Error on an action based fully under,the Safety Appliance Act,

i.e., the Act directed’ to the couplers under 45 USCA, para-

graph 2: ae |

«“Tt shall be unlawful for any common carrier engaged

in interstate commerce by railroad to haul or. permit to

be hauled or used on its line any car used in moving inter-

state traffic not equipped with couplers coupling ; auto-

. matically by impact, and which can be uncoupled without

the necessity of men going between the ends of the cars.’

This Court in an opinion of May 29, 1967, prepared by:

a single assigned Judge is-not only erroneous but totally fails

to consider evidence as to the relationship of the occurrence of

® . .

this accident and cases of precedent.

The only question which was passed on inthe opinion is |

that a train in transit and not engaged in switching operations,

with injuries resulting to a trainman, by the uncoupling of the

train that it is an action properly brought under the Safety

Appliance Act. |

The reason this becomes so important as a case of first

impression in this state as well as in any other state insofar as—

our research has developed, is that the mere bringing of an

_action under the Safety Appliance Act by an injured employee —

removes any burden of proof on him of any show of negli-

gence, and eliminates any show of comparative or contribu- |

tory negligence by the defendant. |

_ This appeal is lodged and this Petition. for ‘Rehearing is

requested for the purpose of preventing future actions to be

brought under the Safety Appliance Act when in fact the proxi-

mate cause of an accident had nothing to do with the purpose

for which the Safety Appliance Act was designed.

' Also, as to whether or not this becomes a jury question

where facts are submitted in evidence to reasonably raise a

question of what caused the occurrence, is again of prime ©

importance in this: opinion.

4 The opinion refers to the Gotschall case (Gotschall vs.,

- Minneapolis & St. Louis Railroad Company reported in 147

375 S. . 598, 61 L. ed. ini

NW Reporter 430, 153 NW Reporter 120, and 244 US 66,

Se a ee “ .

’ .

‘as

‘We respectfully: differ with the opinion wherein it is.

stated that this train was in transit and “that trip was not a

switching operation”. A review of the NW Reporters and the

U. S. would certainly indicate that this'was in a switching op- ;

eration at the town of Jordan, Scott County, Minnesota. This

being an intermediate stop, that the brakeman had gotton off,

and after coupling of cars started to walk on top of the cars

back to his position whememergency brakes and a sudden jerk

threw Gotschall off the train and he was found lying partly

inside and partly outside the rails. It does not state whether .

the train is still in the switch yards of Jordan or had just left.

Jordan but nevertheless it was from a switching operation |

which Gotschall had only moments before been engaged in.

Nevertheless, this case was submitted to the j jury and the

United States Supreme Court held with favor _the State

‘Supreme Court’s comments as follows: —

“We still think that, even with this evidence, the question

.of defendant’s negligence was properly for the jury.’

(underline owe)

The very essence of that case relied .on by: plaintiff in

“their brief restates the proposition that’a jury question did

arise and it was properly submitted to a jury wherein. this

Plaintiff in'Error was deprived of a jury. deliberation of the

yery issues which made up the question of what caused the

train to separate.

scnsinctitaianaenanaighee mmnmmascnmusecaane Jn . mm en an a elit

’ *

ng * .

45

The opiriion attempts.to deliberate the question of negli-

gence and of causes and whether or not a proper showing was

made of causation which entirely defeats the premise upon

which plaintiff brought his original ‘action, i.e., the Safety

Appliance Act. If the Safety Appliance Act only applied, there

‘is no need of any other cause being shown or any negligence

either inferred or proven and the theory of res ipsa loquitur

to be applied. It being understood that res ipsa Joquitur 1 is in

itself an action in negligence, the question being a rule of evi-

“dence only and the questiori shifts to defendant in the proof .

of negligence (Carter Oil vs. Independent Tarp Co., 232 P. -

419). These have no part of the Safety Appliance Act per se.

‘The opinion further states that the plaintiff relies very

heavily: upon the case of O’Donnell vs. Elgin, Joliet & E. R.

Co., 338 U.S. 384, 70S. Ct. 200, 94 L. ed. 187. We thorough-

ly agree that plaintiff does rely strongly on this case and we

look to this case and. first find that therein a jury did make

a finding of facts set the plaintiff. It was submitted to the x

jury.

We also find under Syllabus No: 8 page 206:

“As to the claim based on the Safety Appliance Act, we

hold that the plaintiff was entitled to a peremptory in-

struction that to equip a.car with a coupler which broke

in the switching operation was a violation of the Act,

which rendered defendant liable for injuries - -.”

46.

There can be ng question but what this was a switching

operation, the very purpose of the Safety Appliance Act hav- —

ing to do with couplers was to “couplers coupling automatic

by impact, and which can be uncoupled without the necessity

of men going between the ends of the cars.” (45 be S.C.A..,,

Par. 2)

This opinion seeks to place any and all accidents which

may arise from couplers under the Safety Appliance Act. If -

_ this opinion is allowed to stand “any time an accident occurs

and a coupler is either found. broken or a possible causation

of the accident, whether a train is involved in switching opera-"

tions or not or in transit, the only question will be of damages

and this only to be submitted to the jury. This is not the pur-

pose nor the intent of the Federal Employers Act and the

Safety Appliance Act supplementary thereto.

We respectfully submit that this cause be sekened by this

Honorable Court, that this record be examined and that the

judgment of the District Court of LeFlore County be reversed

and this be remanded for trial on its merits on the question of

causation and contributory negligence. ; %.

Watts, Looney, NIcHOLs & JouNson

Respectfully submitted .

PR RI ee ae

Burton J. lohason. ra

219 Couch Drive .

‘Oklahoma City, Oklahoma.

' Attorneys for Plaintiff In Error

a *

_ Acopy of the tovenelng Petition for Rehearing was 1 wield

ed this 9th of June, 1967, to Varner & Miller, Poteau, Okla-

homa, attorneys for Paul Johnston.

Burton J. Johnson

IN THE SUPREME COURT FOR THE STATE OF

OKLAHOMA :

No. 41569

Tue Kansas City SouTHERN RaiLway ComPANy,

a Corporation, | iste cary,

- Plaintiff in Error,

ener | VERSUS |

PAUL JOHNSTON, .

= Defendant in Error.

AMENDMENT TO PETITION FOR REHEARING

Plaintiff in Error for further appeal to this Court for

rehearing would show that it has been deprived of its rights

granted by the Constitution of the United States; Amendment

VII wherein it grants the following: or

“In Suits at common law, where the value in controversy -

shall exceed twenty dollars, the right of trial by jury shall

be preserved, and no fact tried by’a-jury, shall be other-

wise re-examined in any Court of the United States, than:

according to the rules of the common law.”

This petitioner was deprived of its rights to trial by jury

‘of the, ital question involved in the litigation pending under

the » Federal question effecting aie vans Liability

Act.

48.

Respectfully submitted ” :

Watts, Looney, NicHots & JOHNSON

* BS seesduxess dad evecedeases

Burton J. Johnson

219 Couch Drive

Attorneys for Plaintiff in Error.

Acopy of the foregoing Amendment to Petition for Re

hearing was mailed this 26th day of June, 1967, to Varner &

‘Miller, Poteau, Oklahoma, attorneys for Paul Johnston.

eeeoeeoeooeg oeeoeeeseeeeaeeeeeoed ©

. a _ Burton J. Johnson

’ PETITION FOR REHEARING BY DEFENDANT

RAILROAD and AMENDMENT TO PETITION FOR

ORDER OF SUPREME DENYING PETITION FOR

: , REHEARING:

Filed

In Supreme Court

of Oklahoma

June 27, 1967

ANDY PAYNE, Clerk

IN THE SUPREME COURT OF THE STATE OF

) ORLAHOMA - -.. |

Tuesday, June 27, 1967 |

THE CLERK IS HEREBY DIRECTED TO ISSUE THu

FOLLOWING ORDERS: |

- 41569—Kansas City Southern Railway-Co. vs. Paul Johnston,

| _ Petition for Rehearing Denied.

Floyd L. Jackson

_ Chief Justice

- Sg si

i i ina Asari + boty dss

49

APPLICATION FOR LEAVE TO FILE SECOND

_ PETITION FOR HEHEARING:

IN THE SUPREME COURT OF THE STATE OF

_ OKLAHOMA -

No. 41569

Tue Kansas City SOUTHERN hanwar COMPANY,

a Corporation,

Plaintiff in Error,

VERSUS

PAUL JOHNSTON, .« ,

Defendant in Error.

APPLICATION FOR LEAVE TO ‘SECOND

PETITION FOR REHEAHING

COMES now the Plaintiff in Error and respectfully

shows that heretofore on the 29th day of May, 1967, an

' opinion and decision of this Court was entered sustaining the

verdict of the trial court of LeFlore County, Oklahoma, said

verdict in favor of the Defendant in Error. |

Thereafter on June 9, 1967, this Plaintiff in Error filed

in said cause its Petition for Rehearing, which was by this '

Court denied on June 27, 1967. os

wy

That on the 26th. day of June, 1967, this Plaintiff in

‘Error filed an Amendment to the Petition: for Rehearing

which due to the time filed and the Order of this Court of

| June 27, 1967, this Honorable Court did not ‘have said Amend-

’ ment for its consideration.

... |

WHEREFORE, Plaintiff in Error prays for leave to.

file its Second Petition for Rehearing, copy of which Petition -

is attached hereto. ~* . waa aes cor

LEAVE IS HEREBY GRANTED ;

TO FILE THIS 29 DAY OF JUNE,

1967

F loyd I bn Semaee Cues

Justice. - van

) Respectfully submitted a

Watts, Looney, NicHots & JoHNSON

Burton J. Johnson

219 Couch Drive _

Oklahoma City,. Oklaho

Attorneys for Plaintiff in\ Errok

A copy of the-foregoing Application has been. mailed this

29 day of June, 1967, to Varner & Miller, Poteau, Oklahoma,

attorneys for Paul Johnston. J

ORDER OF COURT DENYING SECOND vantehoin

FOR REHEARING: |

Filed

In Supreme Court |

of Oklahoma

July 18, $967

ANDY PAYNE, CLERK

IN THE SUPREME COURT OF:THE STATE OF 7

OKLAHOMA |

Tuesday, July 18, 1967

a

THE CLERK IS HEREBY DIRECTED TO ISSUE THE

? FOLLOWING ORDERS: Pp

~~ 41569—Kansas City Southern Railway Co. vs. Jaul | ébasion

Second Petition for Rehearing. Denied:

Floyd L. Jackson,

Chief Justice.* a

PETITIONER’S NOTICE OF PETITION FOR

CERTIORARI AND APPEAL TO UNITED STATES -

. SUPREME COURT:

IN THE SUPREME COURT OF THE STATE OF

OKLAHOMA

Saneas CITY SouTHE RN R@LWAY CoMPANY, .

Plaintiff i in Rite

VERSUS ©

PAUL JOHNSTON,

a Yefendant in Error

‘NOTICE OF PETITION FOR cERTIORAR AND.

APPEAL TO THE REME, C T OF THE

STATES = aoe

). 41,527

1. Notice is hereby given that Kansas City ‘Southern

Railway Company, plaintiff, in error herein, hereby gives

notice of appeal to the Supreme Court of the United States, |

from the judgment decision and opinion ‘of the Supreme Court

of the State of Oklahoma, entered in this case on May 29,

1967, and ‘the Order and Judgment entered denying Petition

_fot Rehearing herein on June 27, 1967, and. the Order and

‘Judgment entered denying Application for Leave to File

Second Petition for Rehearing on July 19, 1967.

i | S 52 * 5

_ + & This appeal i is taken pursuant to Title 28, US. i

Sections 1257 and Section 2101 (c), (f), and bia.

XIV, Section 1, Constitution U.S. C.. Amendment XIV, page

- 288; Amendment VII. to the Constitution found under Con-

stitution Amendments US. C., page 134, and Rules 10, 11, 12,

19, 21, 22 and 23 of.the Supreme Court of the United States.

3. The Clerk of the Court will please prepare a trans-

cript of the entire record herein for certiorari and transmission |

to the Clerk of the Supreme Court of the United States, and

include in said transcript the following :

(a). Petition in Error

(b) Copy of the Case-Made in the proceedings in the

lower court containing 282 pages and certificates. —

.(c) Copy of Opinions of this Court i in this case filed May

_ 29, 1967. .

(4) Copies of the Briefs of the plaintiff i in error aa de-

fendant in error.

te): Plaintiff in error’s Petition for Rehearing, Amendment

to Petition for Rehearing and plaintiff in error’s Ap-

plication for Leave to File Second Petition for Re-

hearing. .

_ PETITIONER'S’ NOTICE OF PETITION FOR

CERTIORARI AND APPEAL TO UNITED STATES

' SUPREME COURT:

The following questions are presented by this appeal: ,

1. Whether plaintiff in errox, was denied due process in

violation of the Fourteenth Amendment to the _Constitution

a and deprived of the right to trial by jury in. violation of

53°

Amendment to the Constitution and deprived of the right to

. trial by j jury in violation of ‘Amendment VII to aad Constitu- |

tion. of the United States. :

2. Where it is important to a correct and uniform ap-

plication of the Federal Employer’ s Liability Act i in State and

,Federal courts and

3. When a state jury system requires a jury finding that

the United States Supreme Court will examine record and re-

verse judgment if evidence ig insufficient as a matter of law.

s

Warts, Looney NicHots & JOHNSON.

*- Clyde j.’ Watts

219 Couch Drive

Oklahoma City, Oklahoma

Attorneys for Plaintiff in Error

This is to certify that on the 14th day of August, 1967,

- a true and correct copy of the above and foregoing Notice of

Petition. for Certiorari and Appeal to the Supreme Court of

the United States was mailed to Varner and Miller, Poteau,

wt

- Oklahoma, attorneys for defendant in error, with postage fully

prepaid. eal , 4

oeeeoeeoeeeeeeeeeeeeeeeeneeeeee

Clyde J. Watts

a]

KANSAS City SourHERN Raitway,

54 ee

* ORDER OF OKLAHOMA SUPREME COURT ISSUING

MANDATE BUT STAYING ENFORCEMENT THERE-

’ OF AND ORDER OF SUPREME COURT CORRECT-

ING DATE FOR PERFECTION OF APPEAL: |

. IN THE SUPREME COURT OF THE STATE OF

OKLAHOMA

41569

. Plaintiff in Error,

VERSUS nets

PAUL JOHNSTON, ~ a

\* Defendant in Error.

___ ORDER ISSUING MANDATE BUT STAYING

ENFORCEMENT THEREOF

This cause ‘is reached ‘ted consideration, on the motion

of plaintiff in error, to stay mandate pending the’ dispositian

by the Supreme Court of the United States of America of the .

Petition for Writ of Certiorari filed before me Court by the =

plaintiff in error.

IT IS HEREBY ORDERED that the mandate issue

and further that the enforcement of the same in the trial court

be stayed ‘until August 29, 1967, pending the perfecting: of an

appeal by the plaintiff in error to the Supreme Court of the

United States of Ametica, If such appeal shall stand perfected

on or before August 29, 1967, enforcement of the mandate

of this Court shall- be further stayed until such time as the

Supreme Court of the United States of America shall have

rendered a final decision therein, or pending further order

of this Court.

“@

55.

The stay hereby ordered shall lia conditioned nevertheless

upon the giving. within on days from this date, an undertaking

to be approved by the Chief Justice of this Court, in the penal .

sum of One Thousand and 00/ 100 Dollars ($1,000. 00), con-

ditioned upon the payment by the plaintiff i in error of all costs,

interest, and damage for delay should the appeal of the plain-

tiff in error be not applied for, denied, dismissed, or judgment

_ against plaintiff in error be affirmed in whole or in part. This

_. andertaking shall be in addition to:the supersedeas. bond now

in effect in the District Court of LeFlore County, State of

Oklahoma.

nat ‘i ~ Floyd L. Jackson, Chief Justice.”.

IN THE SUPREME COURT OF THE STATE OF

‘ OKLAHOMA —

Kansas City SourTHERN RAILway CoMPANY, |

Plaintiff in. Error,

: VERSUS

PAUL JOHNSON, ;

Defendant i in’ Error.

ee: No. 41569

ORDER AMENDING DATE FOR PERFECTION

~ OF APPEAL |

This cause is reached for consideration on Application of

plaintiff in error to change-date for appeal to the Supreme

Court-of the United. States of. America from August 29, ame?

to September 25, 1967.

f

.

IT IS THEREBY ORDERED that the Qrder-of Aug-

ust 16, +1967, of this Court stating the date to be August 29,

1967, is hétebi antended to read September 25, 1967.

—_——

——

eS

‘57

APPENDIX C -

PORTIONS OFRECORD «

TESIMONY, OF PAUL snk sisi (R. 65)

> Did you make an inspection of the tele just before you

left Rich Mountain to go down it?

“A. Yes, we did. . a . a

se ‘Tell how you made the inspection. ;

A.

We pulled the train by, the brakeman was on one side ae

and I was on the other. We pulled the whole train by. ~

Where: were you standing with reference to the rail-

road tracks? “>.

ae

Just : few feet off from the clear—frofn the main Tine.

(R. 66) . a F * ; ‘ ¢*

. You mean to say you ened still and the train moved

or did you walk along beside the train?

We stood still and we pulled the train by real slow.

3 Did you see all the train? |

Yes. |

Is this the usual and customary wr to inspect a train?

Yes, sir.

‘:

About how long was the train?

124 cars and a caboose. |

How many engines? i

Seven engines, seven units.

Seven—what kind of units?

(R. 61) | !

Diesel. | . Ne

> OFPOPOPODOP Oo

OR OPO Pe

\P O PF O &

°

» a . oe

9 °

; vr

: 58 l=-

a . . * | ee

* b “2 oe

Tell he} jury about how long a train. like that i is, seven

units and 124 cars and a caboosé. Is it.a quarter a mile, .

half a mile or what?—

Objections )

_—. a “Te was over a mile long.” i

Q. Where were you on the train? |

—(R. 68)

A.- On the caboose.

Q. * When did you get on the caboose?

At Rich Mountain. “ ¥ a0

Yes. -

At the north switch ‘lien he pulled the train by.

How long after you inspected the train was it you got

on the caboose ?. ae Pe

4

‘ Just when the caboose came by we got on ‘it. We i in-

spected the caboose itself when it came by.

Tell the j jury whether or not when you got onthe train,

the train was coupled pogether*and moving down. 7"

mountain. ' ‘

Yes, it was coupled together and moving down the

mountain. »

About how far did you go down the mountain n before |

_anything unusual happened?

Well, about four miles.

(R, 70)

What did you first hear over the radio ee you were is ;

coming in to Howard? -

I heard the conversation—somebody said “Try to get

“that head-end out of the way, the caboose and’ about

30 cars is broke off back here and it looks like they are

going to run into the head-end.” _

(R.71)

A

eee

> eo

©

seine

1) ee

What other message did you hear? ~

I heard somebody tell us “You hate: get benesd, looks .

like we are going to.run into the head-end of the train.” * |

(R.73) . 0: ‘ 1,

What is the weight of those ore ¢ars?

Well, the ore cars run about.75 tens or 80- loaded.

Do you know how many cars of ore there were? _

No, I don’t exactly.

{R. 9S)

Low fast.were you coming down?

3 Running from 45 to 40 miles an hour.

Was there any switching operation between those two

periods of time? F

_«

mee RG reas.

. How far in distance—

About six miles from ‘Rich Mountain to Howard.

And to the best of your knowledge there was no switch-

ing done: from the time that you had stopped and made

an inspection on the west side of the train and Mr.

Duncan had made the inspection on the east side of the

train and had boarded the train and traveled about six

miles to the best of your knowledge there has beer no

| — operations. made by you or any of your crew.

; No, not “when we got on the mountain. (R. 96)

And this was when’ you got on the caboose and had

made i inspection 2

+7

Yes.

-

Q.

2 60

Mr. Johnston, a as you are operite. a train on the

“Rrack from Mena on up through DeQueen, | Howard,

' Heavener—especially through. in this area, it isn’t °

_ uncommon for it—say a pin lever to become activated

from various causes that will cause a-couple to come’

uncoupled ? (R. 100)

It happens. 7 |

And it is not caused by evitching operations—and i it is

not caused by.any coupling operations, it it? It is just in

the regular movement Of.the train? :

—Itis something that’ s got to cause it wicongied.

Such as something hitting the lever or maybe a hose

-breaking and the hose slipping up and hitting the pin?

It could possibly do it something fall off a car: (R.

101):

Something to be flipped up from the railroad bed—

_many of these : ‘things could cause it?

Yes.

Has this sii more frequently ‘during the last

years of your service- than the first years of your

service ?

‘Definitely.

Objections :

How much more often during the later. years of your ‘

service would this happen than the' first years of your

service ?.

I would say three ¢ times as often as it did on 50 to 70.

car trains.

When you first started working how long was the

longest train you had on the railzoad!

A(R: —

@t- :

PO a re we

©.

POP O >

- 70rcars was a big train.

61.

Well, 70 tars would be a ae train.

. Objections *

How long were- the trains when ye first started ,

working ?. Ae, . re

Were they pulled by diesel then?

Sea me

(R.. 104) E

What was the ’ tonnage that could be pulled over the

“mountain about’ 1950? i

Objections = :

ed

Around 3000 tons was a double-header—a mt train. °

Has it increased since then?

Yes.

What’ s the limit now?

Well, there doesn’t seem ‘to be any limit any r more on

what they can pull down there.

What were they pulling that day that you got hurt?

Objections —

(R. 107) -

In fact it is quite common isn’t it when the slack-out is

run in and caused these separation, and when they start,

back out again they break in two?

. . We break in two. It has to be something to hit this pin

to cause it to come up.

.You say a lot of tirnes this occurs when you haven’t had

a broken couple, but you have found that something

activated that pin? a

Yea =. iy ego

‘And it is three to one now is it, than before?

oe

eth

62

yvoe

a

-

—

Well, an estimate. It is a lot worse than when we had -

70 car limit trains. - . aoe a

So my words were “it is not uncommon ?” j

It does happen.

And no switching operations are going on when these

things happen?

No, sir.

- WITNESS DUNCAN (R. 134)

Mr. Duncan, you had just inspected the train six miles

~ back or roughly six miles back, you and Mr. Johnston

both, is that correct ?

Yes.

You was the one on the east side and Mr. Johnston. on

the west side made inspection of this train. as it was

coming north ?

Yes, sir (R. 135)

You had your inspection back up here?

Yes. on

_ At that time the train was all coupled and all function-

ing properly and you got back on and you were in the

movement of the train-on to the next town?

A. Yes.

- There were no switch operations in this area, any coup-

ling or uncoupling df any kind requiring you or Mr.

Johnston to get off and do ~ of these operations?

No, sir.

(R. 136)

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63

Now when you went out of the car you went down to

see a first separation three cars up between a‘car and:

a car ahead of it—some three cars ahead of the cabo-

ose—you found a separation? sie BFS

Yes, sir.

- Mr. Duncan, had the air hose separated?

‘The whole train was separated about three car lengths.

They were separated—had the air hose parted—the :

couplings parted?

They separated.

The knuckles were apart?

Yes, ‘sir.

And the air hoses were. apart?

Yes, sir.

What caused that? -

I don’t know.

(R. 137)

Now, you walked on down then to about 25 cars—

something like that we will call that the one closer to

the head end of the train—and, you found another

break between the trains?

No, SiF. : ,

What did you find there?

_ I found two air hoses uncoupled.

How about the train cars, sir?

(R. 138) .

They were coupled together—both pins were. down. thie

They were back together? — |

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64

Yes, sir. | |

Can you explain to the court and jury now what the

conditions of those knuckles—the air hoses were down

—they were just loose? :

Yes, sir. 7

The knuckles were together were they not, sir?

Yes, sir. ;

And they were coupled where you found them down

there? Jae

Yes, sir. -

. Now, that indicated to you did it not that that is the

separation that the train on the siding had radioed to

you. about of being separated some 50 to 75 feet and

-this was a,run-in and the knuckles had gone back to--

_ gether and coupled? | |

Yes, that’s correct.

(R. 139)

Q. Of course the hoses don’t go back: together, you have to

hook them back together?

Yes, sir.

Would it not be fair then, Mr. Duncan, if these knuck

les ph se together that one or both of them had

Would if not be fair then, Mr. Duncan, if these knuck- |

les were coupled tdgether that one or both of them had’

to be operied in order for them to run back in and

couple ? ; ,

A. Ye. °

So that the operation of,that train at that location had

to have been made and initiated, that is the operation

of that train had to be initiated by one of the couplers

being uncoupled—activated ?

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65

Yes. .

So that.one coupling had to have been tripped or acti-

vated i in order for it to come back together and re-

coupled on perepact F ,

“Yes.

Is it not true, sir, that you find several occasions of un-

_ coupling of a train by the bottom pin lifters that are hit

—an air hose could swing across it and hit this pin—

an animal could hit this pin—something could have

slipped up by the wheels and activated that where the

knuckle — pone the hose loose and separate the

. train?

. Te happens. (R. 140)

Isn’t that a logical conclusion—this pin jumped up and

caused the separation of the train?

I don’t know—I didn’t see it.

I know you didn’t but from your experience isn’t that a

‘ logical conclusion ? a

~ It could have.

(R. 141)

Mr. Duncan I am interested—what does cause this pin

-to jump up—you said not an animal—I should have ©

said foreign object?

We just suppose something like that could happen.

You don’t see it happen but that’s the only explanation

you have that had caused the pin to jump?

They do come up, yes, sir.

There is a lot of snetore that do make them come oo

- Yes, sir.

(R. 142) |

You don’t see those things happen?

66

_A. These might happen in the middle of a 150 car train, ~~’

_ but you don’t see them happen. _ 2 ,

Pin - LONNIE R. MALONE |

(R. 164) 3

Q. And what'is your business or profession ?..

- A, Car foreman for the Kansas City Southern Railroad

Company. — 3

Q How long have you been so employed?

A. 16 years.

Q

Do you have an opinion as to what causes the separa-.

tion and moyements: of -cars-int movement of trains?

—. <2 165)

A. Yes, sir.

Q. I will ask you, sir; if you will, explain tothe court and

jury what can cause a separation of a train as to a

coupler? : |

A. Well, some object can striké it underneath—the lock

pin, causing it to raise.and the couple to open allowing

the cars to separate, and— ak

A. It could be a piece of a tie, a rock—iarge rock—angle

bar—something of that nature:

Q. Something onto the railroad track béd or picked up by

a wheel? : ' ans

A. Yes, sir. See oaks

(R. 166) ox .

Q. If this pin lifter is on the rear of the car, the car going

4, in this direction the pin lifter would -be to the rear,

\Grhich direction would the pin lifter handle be moved

to open the pin? | i”

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67

It would be moving further toward the rear.

If anything hit it from the front it would push the

handle to the rear and activate the pin?

Yes. | .

What other things activate the pin?-

- 6

Air hoses or air hoses becoming ‘uncoupled in some

" manner in the train, the glad hand holder.

(R. 167) Ka , :

Are there other things would cause a pin to’ become

disengaged? i aoe

. Yes, rough track-eausing the cars to bounce up and

~ down causing this pin to raise. | . .

(R. 170).

.- Did you investigate how the coupler got down on the

tie?

We didn’t’assume it got down on the tie, we would as-

_ sume a piece came up and hit the lock lifter.

(R. 171)

What did you observe that made you think of rocks?

Something of a similar kind—we could see rock dust,

or think was rock dust, on the lifting mechanism of the -

couplers. .

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. How would an angle bar get up there?

It could be flipped there by a wheel, if there was an

_ angle bar on the track.

Do you think it is possible to carry seven engines and

90 cars and the next car flip a rock up and hit?

Yes, sir.

(R. 172)

——

“68

Q. So 124 cars and seven engines would go across this

place on high rails as much as seven or eight inches

above the ballast and 100 cars go across ane you think

the 101 might pick up a rock?

I think it is possible. nay ay es

Or an angle bar?» oe “ ?

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Or you think an air hose: -may have done it?

I think it cee,

POP OP

(R 1-76 MOTION. FOR DIRECTED VERDICT

Comes the plaintiff ee moves the court to instruct the —

jury that under the evidence as presented the defendant rail-

road is liable for whatever damages the plaintiff may have sus-

tained, and to further instruct the jury on the question,of

proper measure of damages and to submit the case to the jury

on that question alone, for the reason that under the Safety <

Appliance Act the defendant raijroad company is required to_

equip its cars with couplers which will remain coupled while

the train is moving and that no amount of care on the part of

the defendant railroad can excuse it of this obligation, and

under the evidence as thus far presented the railroad is cleafly

responsible. ‘

BY THE COURT: The Court sustains the motion of the

cures for a directed verdict.

Ta eis bi id aise Ba ANS, Le sant

e

69

~(R. 176) MOTION FOR DIRECTED VERDICT

__. Te-which the defendant excepts, calling the attention of

the court that we preclude by such a. direction of verdict any

deliberation on the part of the j jury on questions which have

been placed béfore the j jury at the present time all matters such

as the length of train, load distribution consisting of the make ,

_ of train and does not now permit the} jury to pass on the ques-

tion as to whether or not an intervening cause of some indepen-

dent cause may have been the effect of the separation of the

train complained of. And further that in all the testimony by

plaintiff and defendant conclusively show no switching opera-

tions either prior thereto or at the time of said separation so

as to make the Safety Appliance Act of the coupler act apply,

and respectfully moves the court to ré-consider in the light of

O’ Donnell, Carter, and Affolder cases, found i in 10 Supreme

Court. |

BY THE COURT: Overruled.