Opposition Brief — Williams v. Mississippi Export Railroad

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

No. 72-839

ROSEBUD WILLIAMS,

Petitioner,

versus

MISSISSIPPI EXPORT RAILROAD COMPANY,

Respondent.

On Petition For Writ Of Certiorari To The

Supreme Court Of The State Of Mississippi

BRIEF FOR THE RESPONDENT IN OPPOSITION

WILLIAMS S. MURPHY

Post Office Box 585

Lucedale, Mississippi

Attorney For Respondent

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INDEX

SUBJECT Page

BRIEF FOR THE RESPONDENT ..........-.-. 1-19

CITATIONS ..... 2... e eee eee ee ee eee eee e ees i-ii

OPINIONS BELOW ..........-..--.00:0eseeseeeee 1

JURISDICTION ..........--00cceeeeeeeec eee eeeeees 1

STATUTE INVOLVED ..........---0002000e eee ee 2

r.

QUESTION PRESENTED ............-----0-055+ 2 :

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SOMD ooo conn cccntceccanrecccnneonness 3-13 q

REASONS FOR DENYING WRIT ...........--. 13-18

CERTIFICATE OF SERVICE ..............---++- 19

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CITATIONS

CASES: :

Anderson v. Atchison, T. & S. F. R. Co., (1948), 333

U. S. 821, 68 S. Ct. 854, 92 L. Ed. 1108 ............ 18 e

Bailey v. Central Vermont Railway Company f

(1943), 319 U. S. 350, 63 S. Ct. 1062, 87 L. Ed. :

EILEEN IRA POT PEC C TICE CT IE 16 ;

Carter v. Atlanta & St. A. B. R. Co., (1949) 337 E

U. S. 430, 70 S. Ct. 226, 94 L. Ed. 236 ............ 18 ‘

Lavender vs. Kurn (1946), 327 U. S. 645, 652, 66 ‘

ee Te ae E Ee 16 E

Lillie v. Thompson (1947) 332 U. S. 459, 68 S. Ct. :

i MN og xed oe ana hoe i anh 18 ;

Mississippi Export Railroad Company vs. Rose- é

bud Williams (1972) 266 So. 2d 28 .............. 1

a pn) ie tad Bl REE et ON AE ORE I NI II PETIA i “a

ii

CITATIONS (Continued)

Myers v. Reading Company (1947) 331 U. S. 477,

fT.) § FS 5 rrr re

Rodericker v. Illinois Central Railroad Com-

pany (1970) 236 So. 2d 414, 420 ..................

Rodericker v. Illinois Central Railroad Company

(1971) 400 U. S. 1012, 91 S. Ct. 565, 27 L. Ed. 2d

Rogers v. Missouri-Pacific Railway Company

(1957) 352 U. S. 500, 77 S. Ct. 443, 1 L. Ed. 2d

Schultz v. Pennsylvania R. Co. (1956) 350 U. S. 523,

ww a GR. GER, BUD Be, BO GED... 5 cc ccccccccccncccss

Stone v. New York C. & St. L. R. Co. (1953) 344

U. S. 407, 73 S. Ct. 358, 97 L. Ed. 441 ............

Tennant v. Peoria & P. U. R. Co. (1944) 321 U.S.

29, 64 S. Ct. 409, 88 L. Ed. 520 ...................

Tiller v. Atlantic Coast Line Railroad Company

(1943) 318 U. S. 54, 63 S. Ct. 444, 87 L. Ed. 610,

FB 8 Perr rr ee

Wilkerson vs. McCarthy (1949), 336 U. S. 53, 69 S.

hf S& 2 sepeereepreeery oet Ae Tee,

Wilkerson v. McCarthy (1949) 336 U. S. 53, 69 S.

ee Se ee Oe UD vd cenccncasdnskacesacvoues

STATUTES:

Federal Employers’ Liability Act, Title 45, U.S. C.

Section 51

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-839

ROSEBUD WILLIAMS,

Petitioner,

versus

MISSISSIPPI EXPORT RAILROAD COMPANY,

Respondent.

On Petition for Writ of Certiorari to the Supreme Court

of the State of Mississippi

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the Supreme Court of the State of

Mississippi was rendered and filed on June 19, 1972,

and petition for rehearing denied September 12, 1972,

in case of Mississippi Export Railroad Company vs.

Rosebud Williams (No. 46690) and is reported in 266

So. 2d 28, Appendix “A”.

JURISDICTION

Jurisdiction of this Court is apparently sought to be

invoked under the provisions of Title 28, U. S. C., Sec-

tion 1257(3).

—_— .

STATUTE INVOLVED

The Federal Statute involved is the Federal Employ-

ers’ Liability Act, Title 45, U. S. C., Section 51, which

provides, in part, as follows (Appendix “B”).

“Every common carrier by railroad while en-

gaged in commerce between any of the sev-

eral states ***, shall be liable in damages

to any person suffering injury while he is em-

ployed by such carrier in such commerce,

* * * for such injury * * * resulting in whole or

in part from the negligence of any of the offi-

cers, agents, or employees of such carrier, or

by reason of any defect or insufficiency, due

to its negligence, in its cars, engines, appli-

ances, machinery, track, or roadbed, works,

boats or other equipment.”

QUESTION PRESENTED

Whether the Mississippi Supreme Court erred in its

application of the provisions of the Federal Employ-

ers’ Liability Act (45 U. S. C., Section 51), and the

decisions and opinions of the United States Supreme

Court, in reversing judgment for Petitioner and ren-

dering judgment for Respondent where there was no

proof in the record of any negligence on part of Re-

spondent, e..-n the slightest, from which a jury might

reasonably infer either proximately or remotely

caused or contributed to Petitioner’s alleged injury.

STATEMENT

Petitioner sued Respondent under Federal Employ-

ers’ Liability Act for $250,000.00, in the Circuit Court

of Jackson County, Mississippi, for back injuries al-

leged to have been received April 10, 1968, while un-

loading crossties from a low side gondola car, and was

awarded damages by the jury in the amount of

$50,000.00 on which judgment entered. Respondent ap-

pealed to the Supreme Court of Mississippi where the

verdict and judgment were set aside and judgment

rendered in favor of Respondent.

Petitioner charged in the declaration that Respond-

ent was negligent in (1) using two men instead of four

to unload each tie from the gondola car; (2) failure

to furnish a safe place in which to work; (3) failure

to properly instruct Petitioner and his co-workers and

(4) permitting existence of banding straps or wire in

gondola car where appellee and co-workers were un-

loading ties.

At the time of the alleged injury, Petitioner and his

co-workers were unloading creosoted crossties which

measured 6” x 8” x 8 1/2’ and weighed between 160

and 165 pounds by actual weight.

Petitioner reported slipping or tripping on a tie or

banding wire while unloading ties and hurt his back

on . pril 10, 1968. Petitioner reported to Dr. R. A. Rob-

erts, a general practitioner of medicine, on Apri] 11,

1968, and returned to his regular duties as a section

laborer on April 15, 1968, and worked regularly until

RO TT ee ere ry,

.

September 16, 1968, when he again claimed he injured

his back stepping across a ditch going to a country

store and was permitted to return to work on Septem-

ber 17, 1968, when he stated he was able to return to

work and made no mention of any injury on April 10,

1968. His work record, in evidence, shows Petitioner

worked regularly, except for vacation time and time

off with sinus trouble, from March 15, 1968 to March

14, 1969, prior and subsequent to date of alleged injury.

Petitioner was retired March 14, 1969, because of con-

genital degenerative back disease on recommendation

of Dr. R. A. Roberts, M. D., Moss Point, Mississippi,

who examined Petitioner on Apri] 14, 1968. Appellee’s

family doctor since 1960, Dr. So] E. Johnson, M_D.,

hospitalized appellee for sinus trouble, made a physi-

ca] examination of Petitioner and swore Petitioner was

able to return to regular duties as section laborer and

that he made no mention of any disabling injury in

1968. Dr. Johnson referred appellee to Dr. Daniel J.

Enger, M. D., an orthopedic specialist, Pascagoula,

Mississippi, for orthopedic examination and evaluation

and Dr. Enger swore that, in his opinion, based on

his examination, Petitioner was able to return to regu-

lar duty; that Petitioner gave no history of a back

injury in 1968, but did give a history of a back injury

in 1945. Dr. O. J. Andy, a neurological surgeon and

instructor at University of Mississippi Medical School

in Jackson, Mississippi, testified he first saw Petition-

er and examined him in October of 1969, at which time

Petitioner gave a history of back injury in 1967, while

lifting a wrenching machine, and no mention was made

of an accident or injury on April 10, 1968, and Dr. Andy

related Petitioner’s condition, as testified to by Dr.

Andy, to the alleged back injury of 1967.

ii ta ae aes A a a ee a Nia

Petitioner testified that in April 1969, a year follow-

ing the alleged accident and injury for which suit was

filed, Petitioner made application for Railroad Retire-

ment Disability benefits and was approved for such

benefits, because of a sinus condition and not because

of an alleged disability due to a back injury.

As to the alleged accident, Petitioner testified the

ties in the gondola car were banded or bundled with

metal strap or wire and said (R. 251):

“While unloading the ties — there's band

strapping in the car, I don’t know whether it

was a piece of wire, or one of the bands —

Nevertheless, the ties was piled on the other

end of them, and some of them was down un-

der my feet. And I begun to run and sheve the

tie off, and it caught me, caught my left leg

and throwed me down in the car against some

more ties, on my left side. And Robert, being

with me, caught the tie.

“I couldn’t tel] you what position I was in,

you know, when a person falls — I was trying

to protect myself. I had the tie, but I didn’t

have time to turn it a loose before I fell.”

Petitioner testified he had twenty-four years experi-

ence loading and unloading crossties (R. 252); that

the ties weighed between 350 and 400 pounds each (R.

252), but Petitioner had never weighed any ties on Re-

spondent’s railroad (R. 281). Petitioner reported the

accident the following day and made a report of same

— ERG TAR ENS TET COILS LOY OEE

and was told to go see a doctor (R. 254-255); that he

reported to a doctor but did not know which doctor

who prescribed double strength aspirin (R. 255-256):

that he returned to work and worked “pretty regular

thereafter and took vacation time when he did not fee]

like working” (R. 257-258). He sprained his back step-

ping across a ditch in September, 1968, and missed

a couple of days from work but continued to work until

March 14, 1969 (R. 266-267).

Petitioner injured his back in 1945 while working for

the GM&O Railroad Company and told Dr. Enger a-

bout the 1945 accident (R. 279-280).

Petitioner testified to unload the ties, one man would

put the tie on the side of the gondola and the other

man would shove it across the edge of the gondo-

la where it dropped to the ground (R. 286); that the

ties in the gondola had been banded (R. 292); that

he did not remember who cut the bands, but the bands

were cut when he got into the gondola (R. 292-293);

that the ties were 6” x 8”, 7” x 8” and were 8 1/2

feet long (R. 294); that about April, 1969, Petitioner

started drawing Railroad Retirement Disability bene-

fits in the amount of $154.00 every two weeks for sick-

ness due to sinus trouble (R. 301-305).

Petitioner was sent to see Dr. Daniel J. Enger for

examination and evaluation by Dr. Sol E. Johnson,

who was treating Petitioner at the time for sinus trou-

ble (R. 307-308). Petitioner lost from 33 to 34 days from

work because of sinus trouble (R. 309).

w—

7

Petitioner testified that on September 16, 1968, going

to a country store near the railroad, he jumped a ditch

and hurt his back and gave a statement that Petition-

er was feeling fine and able to return to his regular

work (R. 315-317) and that on September 16, 1968, when

he jumped the ditch he rehurt his back in the same

place where it had been hurt before (R. 321-322).

Dr. O. J. Andy testified that he was a neurosurgeon

from Jackson, Mississippi, and first saw Petitioner in

1969, at which time Petitioner gave a history of low

back pain since 1967, when Petitioner sustained an in-

jury while working for MERR “lifting a wrench ma-

chine” and felt something pull in his low back; that i

it made appellee sick; that he went blind momentari- ;

ly (R. 325-326). :

Petitioner was X-rayed by Dr. Andy on October 28,

1969, and myelographic X-rays made in March of 1970.

Dr. Andy saw Petitioner at fairly regular intervals.

Petitioner had recurring episodes of pain in his low F

back, whenever he tried to exert himself like lifting

logs off a truck. In one instance, according to Dr. Andy,

Petitioner had unloaded a ton or two of logs and when

he got on the third one he had to quit because of the

pain that developed in his low back (R. 334-335).

Petitioner was operated on by Dr. Andy on March

19, 1970, (R. 339). He testified “A. I felt that he was

100 percent permanently disabled, in relation to per-

forming heavy labor, and he was 5 per cent permanent

partial disability to his body as a whole” (R. 340-341).

He was not sure which accident he was testifying about

: EEL LOM OO OE TE OT LEE OE ITE TE _t

PBA PR ARS LY Ma RE. TRA ae IPR RAE RNS AER

] 8

(R. 351). He related the condition he testified to to

an alleged accident in 1967 and not 1968 (R. 359-360).

Robert James Smith, a co-worker of Petitioners,

testified he worked with Petitioner on April 10, 1968

(R. 374-375); that Petitioner trained the witness as a

section hand (R. 380); that the witness and Petitioner

broke the straps binding the crossties before they

started unloading the ties from the gondola car and

that Petitioner used a maul to break the straps bind-

ing the crossties (R. 381).

The witness, Smith, testified that two men were

working on each end of the gondola car unloading ties;

that one man would put the tie on the edge or side

of the gondola and the other would shove it over where

it fell to the ground (R. 382-383); that the ties were

being unloaded in the usual and customary manner;

that he had never known of Mr. Carpenter or any of

the section crews using four men to a tie; that when

he started working for MERR they used two men to

a tie and that if Mr. Carpenter used four men to a

tie, the tie would have to be a “switch” tie “which

is a great long one” and you can’t put a switch tie

crossways in a gondola car (R. 383-384); that the full

weight of the tie is never on One man when unloading

ties; that two men can safely handle one of the ties

being unloaded at the time and that two men are all

that are necessary to do that type work with reasonable

safety (R. 384-385); that following the date of the al-

leged accident the witness and Petitioner had unloaded

other cars loaded with ties; that in September 1968,

Petitioner jumped a ditch and claimed he hurt his back

at that time (R. 386-387).

Smith testified that he had weighed ties of the same

kind, quality and type as the ties being unloaded from

the gondola, on the date of the alleged injury, but did

not know how much the ties weighed and that

his earlier testimony as to the weight of the ties were

mere guesses (R. 388-389).

Smith was later recalled to the stand and testified

that since giving the earlier testimony he had weighed

crossties of the same size, character and creosoted,

like the ties being unloaded by Petitioner on April 10,

1968, and the ties weighed 160 pounds (R. 466) and

that two men could handle the ties with reasonable

safety (R. 467-468).

Leroy McMillan testified that he was working on the

south end of the gondola car unloading ties with a co-

worker and that Robert Smith and Petitioner were on

the north end of the car; that during the lunch hour

Petitioner complained that his back was hurting; that

Petitioner continued to unload ties for the remainder

of the day (R. 400-406); that the ties were being un-

loaded in the usual and customary manner and that

two men to a tie had been used to unload ties over

the past twenty-four years and that it was a safe and

reasonable way to unload ties (R. 407). He did not know

the weight of the ties and that when he spoke of the

weight of the ties, it was an estimate or guess on his

part (R. 409).

After being excused from the stand, Respondent lat-

er recalled Leroy McMillan to the stand and he testi-

fied that he had testified earlier that the ties being

MAUL OE LAB

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ELE NII IIL ES TIN OAT MAE IT REN TE EE NIT LEI a

unloaded weighed from 350 to 400 pounds each and

that since his testimony he had weighed crossties of

the same kind, quality and type as those being un-

loaded from the gondola car and that the ties weighed

from 160 to 165 pounds (R. 459-462).

10

Dr. Daniel J. Enger, an orthopedic surgeon of Pasca-

goula, Mississippi, testified that he examined Petition-

er April 23, 1969, at the request of Dr. Sol Johnson,

a local physician (R. 411-413).

Dr. Enger testified Petitioner gave a history of hay-

ing been struck in the back by a crosstie in 1945 and

that Petitioner’s last day of gainful employment was

March 14, 1969, when Petitioner ceased work because

of sinus trouble for which he was hospitalized, under

the care of Dr. Johnson and it was Dr. Enger’s opinion,

based on his examination of Petitioner, that as of April

23rd, 1969, Petitioner could return to work (R. 413).

Dr. Paul H. Moore, Pascagoula, Mississippi, a medi-

cal doctor specializing in radiology, examined the X-

rays taken of Petitioner and his examination showed

“spurring” and at C-5 and C-6, “disease of the verte-

brae as well as degenerative disease of the interverte-

bral discs, aging process.” (R. 446). Petitioner, accord-

ing to Dr. Moore, also had degenerative disease of the

lumbar vertebrae, a degeneration of L-5 and S-1 (R.

447).

Dr. Sol E. Johnson, a medical doctor of Moss Point,

Mississippi, and Petitioner’s family doctor, first saw

Petitioner in 1960 and had never treated Petitioner for

a back injury or ailment but had treated Petitioner

11

for sinusitis and bronchitis (R. 452-453); that in Dr.

Johnson’s opinion Petitioner could return to work when

he was released from the hospital where he was con-

fined with a sinus condition (R, 452-454); that Doctor

Johnson had Dr. Enger examine Petitioner because

Petitioner had told Dr. Johnson the Respondent would

not permit Petitioner to return to work and appellee

was being retired and that Dr. Johnson and Dr. Enger

were both of the opinion Petitioner was able to return

to work and that Petitioner was in good physica] shape

for a man of his age and occupation (R. 454-455). Dr.

Johnson certified Petitioner as able to return to work

on April 15, 1969 (R. 456).

W. O. Carpenter, section foreman on April 10, 1968,

with forty years of experience as a section foreman

(R. 471), testified that nothing unusual happened on

April 10, 1968, so far as he knew; that on April 11, 3

1968, he learned that Petitioner claimed to have tripped

on a crosstie on the 10th of April and made a record e

of it in his time book (R. 471-472); that there were 3

383 ties in the gondola car being unloaded on the 10th

of April, 1968, and the dimensions of the ties were 6”

x 8’ x 8 1/2’ and creosoted (R. 473); that the

ties weighed 160 pounds each and two men could handle

the ties with reasonable safety (R. 474); that wire

bands are used to fasten the ties together when they

are creosoted and loaded into a gondola car; that it

is the job of the men on the section crew to cut the

bands holding the ties together and that the crew have

tools to cut the bands (R. 477).

SEP AINA ght MEY

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PRAMS Ri OCB RAES ALLY

RIA eg TE YE SAIL FRIELING IAT INE 8? er _ 2 SAN WA PRY AEDT ORGS RE a

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12

C. A. Stephenson, Chief Engineer of MERR, testi-

fied the section foreman, Carpenter, reported that Pe.

titioner claimed he was injured on April 10, 1968 (R.

481); that the witness questioned Petitioner and was

told that Petitioner slipped on a tie and sprained his

back; that Petitioner was sent to see Dr. Roberts and

that Petitioner did not lose any time from work, other

than as shown or indicated on the time records and

worked at his regular job without complaint (R. 482-

483); that Petitioner reported he hurt his back jump-

ing a ditch following the April 10th, 1968, claim and

that Petitioner gave him a statement in which Petition-

er stated he was feeling all right and could return to

his regular job (R. 483). Petitioner was sent to a doctor

for examination who reported that because of Petition-

er’s condition he should be retired (R. 483-484).

C. A. Stephenson further testified that before his em-

ployment by MERR he had had twenty years experi-

ence with ties and equipment and the ties being un-

loaded on April 10, 1968, weighed about 164 and 165

pounds each (R. 485); that he had some of the ties

weighed of the same type, quality and size as those

in the gondola car on April 10, 1968; that six of the

ties were weighed and were six by eights and that

two men to a tie were sufficient to unload ties with

reasonable safety and that this was customary in the

industry (R. 486-490).

Dr. R. A. Roberts, Moss Point, Mississippi, a general

practitioner, with twenty-one years experience, testi-

fied he examined Petitioner on April 11, 1968; that Peti-

tioner had a marked lumbosacral] sprain and was given

a PNRM AROMAT TS 9 oe RE CR A Ne ARE ee

——_—_ sob. as SPIN ASIA ARE Be i

13

medication (R. 492); that Petitioner was examined a-

gain on June 20, 1968, and cleared for work; that Peti-

tioner was again seen in September, 1968, complaining

of a catch in the left flank caused by “stepping across

a ditch”; that X-rays showed a degenerative disease

of cervical vertebrae C-6 and C-7, as well as degenera-

tive disease of “lumbar vertebral bodies, discs, nar- ;

rowing at L-5 and S-1 level, the fifth lumbar and first t

sacral level” (R. 493). He testified that he examined 3

Petitioner on April 14, 1969, and, because of the degen-

erative diseased bodies of the cervical and lumbar 4

spine, recommended Petitioner be retired (R. 496). He t

further testified that Petitioner gave him a history of

having suffered back injury in 1945 while unloading

crossties (R. 497).

4

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REASONS FOR DENYING THE WRIT

The decision of the Supreme Court of Mississippi,

in reversing the judgment for Petitioner and rendering

judgment for Respondent, is not at variance with the

Federal Employers’ Liability Act or any of the deci-

sions of this Court.

Petitioner’s allegation of injury on the job is not proof

of negligence on the part of Respondent under the Fed-

eral Employers’ Liability Act and decisions of this

Court.

Guesses, suppositions and opinions as to the weight

of a crosstie must give way to the uncontradicted tes-

timony as to actual weight of the crosstie as shown

by the scales.

14

As stated in the opinion (Appendix A), “Neither the

weight of the crosstie nor the number of workmen han-

dling it had anything whatsoever to do with plaintiff

tripping over a banding wire that he had carelessly

left on the floor of the gondola car.”

Petitioner's major contention is that the Supreme

Court of Mississippi went beyond or failed to apply

the rules of this Court laid down in Rogers v. Missouri-

Pacific Railway Company, (1957) 352 U. S. 500, 77S

Ct. 443, 1 L. Ed. 2d 493, which case is cited in the

opinion of the Supreme Court of Mississippi and which

sets forth the test of a jury case under the Federal

Employers’ Liability Act, as follows:

“Under this statute the test of a jury case is

simply whether the proofs justify with reason

the conclusion that employer negligence

played any part, even the slightest, in produc-

ing the injury or death for which damages are

sought. It does not matter that, from the evi-

dence, the jury may also with reason, on

grounds of probability, attribute the result to

other causes, including the employee's contrib-

utory negligence.

“Judicial appraisal of the proofs to determine

whether a jury question is presented is nar-

rowly limited to the single inquiry whether,

with reason, the conclusion may be drawn that

negligence of the employer played any part at

all in the injury or death. Judges are to fix

their sights primarily to make that appraisal

208 er er EO ee Be — ee

——

and, if that test is met, are bound to find that

a case for the jury is made out whether or not

the evidence allows the jury a choice of other

probabilities. The statute expressly imposes li-

ability upon the employer to pay damages for

injury or death due ‘in whole or in part’ to its

negligence.”

In the case of Tilles %. Atlantic Coast Line Railroad

Company, (1943) 318 U. S. 54, 63 S. Ct. 444, 87 L. Ed. '

610, 143 A. L. R. 967, holding (among other things)

that “the employer's liability is to be determined un-

der the general rule which defines negligence as the :

lack of due care under the circumstances, or the failure

to do what a reasonable and prudent man would or-

dinarily have done under the circumstances or situa-

tion, or doing what such a person under the existing

circumstances would not have done.”, this Court rec- :

ognized that some negligence, even the slighest, on

the part of the employer must be proved or shown

to have caused or contributed to the injury for which

damages are sought. This rule was also recognized

by the Supreme Court of Mississippi in arriving at its

decision.

Petitioner cites the case of Tennant v. Peoria & P.

U. R. Co. (1944), 321 U. S. 29, 64 S. Ct. 409, 88 L. Ed.

520, recognizing the holdings in the earlier cases and

the tests to be applied in jury cases, and in which it

is said:

“In order to recover under the Federal Em-

ployers’ Liability Act, it was incumbent upon

petitioner to prove that respondent was negli-

gent and that such negligence was the proxi-

mate cause in whole or in part of the fatal ac-

cident. ** *.

“Petitioner was required to present probative

facts from which the negligence and the causal

relation could reasonably be inferred. “The

essentia] requirement is that mere speculation

be not allowed to do the duty for probative

facts, after making due allowance for al] rea-

sonably possible inferences favoring the party

whose case is attacked.” ***.”

In Lavender vs. Kurn (1946), 327 U. S. 645, 652, 66

S. Ct. 740, 90 L. Ed. 916, this Court, with reference

to the facts reflected by the record before it, among

other things stated: “* * *. Under these circum-

stances it would be an undue invasien of the jury's

historic function for an appellate court to weigh the

conflicting evidence, judge the credibility of witnesses

and arrive at a conclusion opposite from the one

reached by the jury. * * * .” There can be no ques-

tion that this is a true statement of the law, but where

the evidence is not conflicting and there is no issue

to submit to the jury then the trial judge should direct

the verdict accordingly.

Petitioner next cites the case of Bailey v. Central

Vermont Railway Company (1943), 319 U. S. 350, @

S. Ct. 1062, 87 L. Ed. 1444. This case does not change

the test as applied by the Supreme Court of Missis-

sippi using the decisions of this Court as a guide.

ce es eee a —

wn

17

The rule is not changed by the case of Wilkerson

vs. McCarthy (1949), 336 U. S 53, 69

L. Ed. 497 and in this case the Court said (336 U.

In the case of Rodericker v. Illinois Central Railroad

Company (1971), 400 US. 1012, 91 S.Ct. 565, 27 L.Ed.

24 626, appealed from the Supreme Court of Missis-

sippi, this Court denied the petition for writ of certio-

Employers’ Liability Act cases. In the Rodericker Case

the injured employee sued the wrong defendant and

in Rodericker v. Illinois Central Railroad Company,

(1970) 236 So.2d 414, 420, the Mississippi Supreme Court

said:

vU the undisputed evidence in the record

ble men could not differ in concluding

the time of his injury, Rodicker was the

of UPT, doing its work, and under its

e~clusive supervision, direction and control. :

The trial court correctly found that there was

no factual issue as to this and no evidence cap- }

able of supporting a jury finding that, at the ;

time of his injury, Redicker was working as a

servant of Illinois Central or under its super-

vision, direction or control, and his action in

directing a verdict for appellee was correct.”

18

The rules laid down by Congress in the Act and the

decisions of this Court regarding the application

of those rules and tests to be applied in each case have

not been changed in the cases of Schultz v. Pennsyl.

vania R. Co. (1956), 350 U. S. 523, 76 S. Ct. 608, 199

L. Ed. 668; Stone v. New York C & St. L. R. Co,

(1953) 344 U. S. 407, 73 S. Ct. 358, 97 L. Ed. 441; Carter

v. Atlanta & St. A. B. R. Co., (1949) 338 U. S 430,

70 S. Ct. 226, 94 L. Ed. 236; Wilkerson v. McCarthy

(1949), 336 U. S. 53, 69 S. Ct. 413, 93 L. Ed. 497; Ander.

son v. Atchison, T. & S. F. R. Co. (1948), 233 U.

821, 68 S. Ct. 854, 92 L. Ed. 1108; Lillie v. Thompson

(1947), 332 U. S. 459, 68 S. Ct. 140, 92 L. Ed. 73 and

Myers v. Reading Co., (1947) 331 U. S. 477, 67 S Ct

1334, 91 L. Ed. 1615. All of these cases provide that

under the Act recovery for personal injuries and death

must rest on a showing of some negligence supported

by probative facts capable of supporting, with reason,

the conclusion expressed in the verdict and where there

is no showing of negligence, even the slightest, then

the case is not one for the jury.

The cases cited by Petitioner furnish no basis for

Petitioner’s claim that the decision of the Supreme

Court of Mississippi is in conflict with the Act or de-

cisions of this Court.

The books are dotted with cases of this Court which

hold that before a case is submitted to the jury there

must be probative facts capable of supporting, with

reason, a jury verdict.

19

CONCLUSION

Wherefore, the petition for a writ of certiorari should

be denied.

Respectfully submitted,

Williams S. Murphy

Post Office Box 585

Lucedale, Mississippi 39452

Attorney For Respondent.

CERTIFICATE OF SERVICE

I, the undersigned attorney of record for Respondent,

Mississippi Export Railroad Company, hereby certify

that I have this day mailed, postage prepaid, United

States Mail, two copies of the foregoing brief for the

Respondent in opposition to petition for writ of cer-

tiorari to Messrs. Ramsey, Bodron & Thames, At-

tention Honorable James B. Ramsey, First National

Bank Building, Vicksburg, Mississippi 39180, and one

copy to Honorable Donald Cumbest, 707 Watts Avenue,

Pascagoula, Mississippi, 39452, attorneys of record for

Petitioner, Rosebud Williams.

This the ____ day of January, 1973.

CDN GPO TTT Mek TR

Williams S. Murphy

Post Office Box 585

Lucedale, Mississippi 39452

AIR ety Tere

IN THE SUPREME COURT OF MISSISSIPPI

No. 46,690

ROSEBUD WILLIAMS

versus

MISSISSIPPI EXPORT RAILROAD

(266 So. 2d 28)

ROBERTSON, JUSTICE:

Rosebud Williams, a male, sued the Mississippi Ex-

port Railroad Company in the Circuit Court of Jackson

County under the Federal Employes’ Liability Act for

injuries sustained by him on April 10, 1968, when he

tripped over a banding wire while unloading railroad

crossties from a gondola car. The jury returned a ver-

dict for $50,000.00 and the Railroad Company appeals.

Plaintiff testified that he began work for defendant

as a section laborer on December 16, 1952: that he

had been working for defendant about 16-1/2 years when

he was retired because of sinus trouble and a degener-

ative back condition. Prior to working for defendant

he had worked as a section laborer for the Columbus-

Greenville Railroad Company, Gulf, Mobile and Ohio

Railroad Company and Southern Pacific Railroad

Company.

One of his regular duties was unloading crossties.

On April 10, 1968, along with 4 other section crewmen,

he began to unload regular creosoted crossties from

a low-side gondola car, which is an open car with side

about four feet high. There were 383 crossties in this

gondola car. They were bound together in lots of twelve

with metal bands or wires, and it was the duty of the

crewmen unloading them to cut these metal bands so

that the crossties could be unloaded one by one.

Robert Smith and plaintiff were working as a team

in the north end of the gondola car, and Leroy Mc-

Millian and Chambers White were working in the south

end. Rosebud testified that he and Smith had a cleaver

and a maul with which to cut the banding wires. Smith

testified that he held the cleaver while Rosebud wield-

ed the maul in cutting the metal bands binding the

crossties. The procedure for unloading was for Smith

to pick up one end of the 160-pound crosstie and place

it on the side of the gondola car. Rosebud would pick

up the other end and slide it over the side of the rail-

road car.

Rosebud testified:

“While unloading the ties — there’s band

strapping in the car, I don’t know whether it

was a piece of wire, or one of the bands —

Nevertheless, the ties was piled on the other

end of them, and some of them was down under

my feet. And I begun to run and sheve (sic)

the ties off, and it caught me, caught my left

leg and throwed me down in the car against

some more ties, on my left side. And Robert,

being with me, caught the tie.”

Plaintiff complained to his fellow workers that he

had hurt his back but he continued to work for the

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STR EI ee an ee? ee ae Tie oe ATRL ETRE é

3a

rest of the day. On the morning of April 11, he reported

to his section foreman, W. O. Carpenter, that he had

injured his back. Carpenter sent him to Thompson’s

Clinic at Moss Point, where he was examined by Dr.

Forrester. T. M. Von Sprecken, Jr., Vice-President and

General Manager of Defendant, was called as an ad-

verse witness by plaintiff and testified that the report

from Thompson’s Clinic was: “Sacro-sprain, and okay

to go back to work on Monday, the 15th.”

On April 15th, Rosebud returned to his regular job

and worked in the same manner that he had in prior

years.

He testified that he again injured his back in the

same place about September 18, 1968, when in going to

a grocery store near his place of work he jumped a

ditch and twisted his back. He was 59 years of age

at this time and had been working as a section hand

for 24 years. On September 20th, he was sent to the

hospital for X-rays.

Dr. Roberts of Thompson’s Clinic testified:

“Yes, the X-ray report says cervical spine

shows degenerative disease, cervical verte-

bral body degenerated, C-6 and -7, cervical 6

and 7; lumbar spine showed degenerative di-

sease, lumbar vertebral bodies, discs, narrow-

ing at L-5 and S1 level, the fifth lumbar and

the first sacral level.

“Q All right, sir. Now, that’s degenerative

disc disease that your talking about?

“A Yes, sir.

FLOOR RIC LLL LIS LENE

4a

“Q Then, Doctor, when was he returned to

work; does your record sho: that is as a re-

sult of —

“A The September episode.

“He was seen again by Dr. Thompson on the

2nd of October. And the entry here says ‘X

rays, change consistent with degenerative di-

sease,’ aging. Able to return to work October

2nd.”

Dr. Roberts further testified, without objection, as

to an October 11, 1968, written report to Von Sprecken:

“This was written by Dr. Thompson. He had

seen him at the time he was in the hospital and

had his X rays made. The patient, in my opin-

ion, has only an involvement in keeping with his

age. However, in his type of work, it would be

continuously bad on this condition. If he were

being hired to new employment, it would prob-

ably be the same type of work. It’s my opin-

ion that this man can continue to work on his

present job, keeping in mind that at an early

time the degenerative process will proceed at

a normal rate.”

Dr. Roberts made another written report on April

16, 1969. He stated from the witness stand:

“Let’s see. The above patient was examined

by me on April 14, 69. After examining this

patient and reviewing the X rays, I note the

degenerative diseased bodies, and degenera-

tive discs C-6 and -7 level, which means de-

DE oP Ry SS POA NL IEE ee PF Zs Ete o8 7. OSM ee

5a

generated cervical and lumbosacral spine, mi-

nimal narrowing at the L-5 and S-1 level, due

to the type of disease of the cervical spine. It

is my opinion he should be retired.”

Plaintiff testified that he made a claim for Railroad

Retirement Disability Benefits in April, 1969, and that

he sent in Dr. Roberts’ statement in support of his

claim.

J

He was cross-examined about this:

“Q Well, his is the one that started the

benefits, isn’t it, the statement that he pre-

pared and you sent into the Railroad Retire-

ment Board?

“A He wasn’t the one that started the bene-

fits, cause when I started drawing it, I got

off sick for something else.

“Q What were you sick with?

“A Something like the flu. In other words,

it was sinus trouble.

“Q It was sinus trouble that you had?

“A That’s right; and I started drawing

from there.

“Q So, that is what you started the benefits

gn, was your Sinus trouble?

“A Right.”

Rosebud testified that his retirement pay was $154.00

every two weeks.

Plaintiff filed suit on June 24, 1970. In his declara-

tion he alleged:

“Plaintiff would further show that while at-

tempting to unload the ties at the instruction

and direction of the said W. O. Carpenter with

inadequate and insufficient help, he was

caused to severely, painfully and permanently

injure his low back when he tripped over a

banding wire while lifting one of the ties, caus-

ing him to fall on other ties in the car, severe-

ly, painfully and permanently injuring his low

back.”

Plaintiff charged the railroad company with negli-

gence and carelessness “in failing and neglecting to

furnish the Plaintiff with an adequate and sufficient

number of co-workers to perform the work, and further

by reason of the negligence and carelessness of the

Defendant through its Section Foreman, W. O. Car-

penter, in directing and instructing the Plaintiff and

his co-workers to handle the work of unloading the

crossties in an unsafe method or manner by directing

that only two workers handle each tie when the said

agent and employee of the Defendant knew, or through

the exercise of reasonable care (should have known

that this was) an insufficient number of employees

to safely handle the said crossties, and by the further

negligence and carelessness On the part of the Defend-

ant in failing to exercise reasonable care to furnish

the Plaintiff with a safe place to work by suffering,

allowing and permitting the maintenance and existence

of the loose steel tie bands in the gondola car where the

Plaintiff was required to work, ...

According to the Plaintiff, each crosstie weighed 350

to 400 pounds. Plaintiff was asked by his counsel:

Ta

“What’s the normal number of men to be

used in handling crossties of this weight?”

(Emphasis added.)

To which plaintif responded:

“To do it safely, four men.”

W. O. Carpenter, the section foreman, testified that

these crossties weighed 160 pounds each, and later

Robert Smith and Leroy McMillian testified that they

actually witnessed the weighing of these regular cross-

ties and they weighed 160 pounds each.

As to the usual and customary manner in which regu-

lar crossties were unloaded, Smith testified:

“Q Was that the usual and customary man-

ner in which you unloaded ties?

“A Yes, sir, the only way you unloaded

"em.

“Q So, have you ever known of Mr. Carpen-

ter, or any of the section crew, to use four

men?

“A No, sir. When I started in, all we used

was two.

“Q That’s all you ever used, isn’t it?

“A .Yes, sir. If Mr. Carpenter used four

men, it would have to be a switch tie, which is

a great long one.

“Q And you can’t put one of those sideways

in a gondola like the one you were unload-

ing”?

“A No, sir.”

(Emphasis added)

REN ORIN MU AO IE A I

8a

Smith further testified as to his work with Plaintiff:

“Q How was the work divided up? Tell the

Court and Jury what you all do, Robert,

and how it happened.

“A We was unloading some crossties. He

was tailing; I was putting ’em up, and he had

to push ’em out. And he tripped over a bail

wire.”

“Q Now, Robert, on the date that you were

there, and you were unloading these ties, were

they strapped?

“A Yes, sir.

“Q The ties were strapped when you

got there?

“A Yes, sir.

“Q Who broke the straps on those ties?

“A Me and him.

“Q How did you break the straps?

“A Took a maul, laid it down, and beat it

up against there to break it.

“Q Did he do the beating, or did you?

“A He did the beating.”

The United States Supreme Court in Tiller v. Atlantic

Coast Line Railroad Company, 318 U.S. 54, 63 S.Ct.

444, 87 L.Ed. 610, 143 A.L.R. 967 (1943), outlined the

standard to be used in FELA cases:

“In this situation the employer’s liability is

to be determined under the general rule which

defines negligence as the lack of due care un-

der the circumstances; or the failure to do

FS LMR RN RRM REY De

what a reasonable and prudent men would or-

dinarily have done under the circumstances of

the situation; or doing what such a person

a person under the existing circumstances

would not have done. A fair generalization of

the rule is given in the Senate Committee re-

port on the 1939 amendment; ‘In justice, the

master ought to be held liable for injuries at-

tributable to conditions under his control when

they are not such as reasonable men ought

to maintain in the circumstances.’ Of course

in any case the standard of care must be com-

mensurate to the dangers of the business.”

(Emphasis added.) 318 U.S. at 67, 63 S.Ct. at

451, 87 L.Ed. at 617, 143 A. L. R. at 974.

(1) In Rogers vs. Missouri Pacific Railroad Co.,

352 U.S. 500, 77 S.Ct. 443, 1 L.Ed. 2d 493 (1957), the

United States Supreme Court said only slight negli-

gence on the part of the defendant need be proved.

But even that degree of negligence must be proved

by a preponderance of the evidence. This the plaintiff

failed to do. Plaintiff did not prove that defendant was

guilty of any negligence whatsoever.

(2) The evidence was uncontradicted that plaintiff

was an experienced railroad section hand; in fact, he

himself testified that he had 24 years experience in

this work. The proof was undisputed that new creo-

soted crossties came banded together with metal bands

or wire. The crew members were solely responsible

for cutting these metal bands and getting them out of

the way. Plaintiff claimed that he was injured when

he tripped over a cut banding wire. Robert Smith,

plaintiff's working companion, testified that plaintiff

—

10a

actually wielded the maul that broke the banding wire.

Plaintiff cannot recover from his employer for injures

caused solely by his own negligence. It was his duty,

and his alone, to cut and remove the banding wire.

This he failed to do. It was his negligence that caused

his injuries. Neither the weight of the crosstie nor the

number of workmen handling it had anything what-

soever to do with the plaintiff tripping over a banding

wire that he had carelessly left on the floor of the gon-

dola car.

Even under the stringent rules of FELA, the defend-

ant was entitled to a peremptory instruction. There

was no proof whatsoever that the defendant was guilty

of even the slightest degree of negligence.

The judgment is, therefore, reversed and judgment

rendered for the defendant.

Reversed and rendered.

GILLESPIE, C. J., and JONES,

INZER and SUGG, J.J., concur.

—_— eit <A REDT RRRRIE R TT T

lla

APPENDIX “B”

TITLE 45, U. S. C.. SECTION 51

“SECTION 51. Liability of common carriers by rail.

road, in interstate or foreign commerce, for injuries

to employees from negligence — Definition of employ-

“Every Common carrier by railroad while engaging

in commerce between any of the several States or Ter-

ritories, or between any of the States and Territories,

or between the District of Columbia and any of the

States or Territories, or between the District of Colum-

bia or any of the States or Territories and any foreign

nation or nations, shall be liable in damages to any

person suffering injury while he is employed by such

carrier in such 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

carrier, or by reason of any defect or insufficiency,

due to its negligence, in its cars, engines, appliances,

machinery, track, roadbed, works, boats wharves or

other equipment.

Any employee of a carrier, any part of whose duties

as such employee shall be the furtherance of inter-

state or foreign commerce; or shall, in any way direct-

ne > open ee ree < AEST eee —_—

—— ee eee

12a

ly or closely and substantially, affect such commerce

as above set forth shall, for the purposes of this Act,

be considered as being employed by such carrier in

such commerce and shall be considered as entitled

to the benefits of this Act and of an Act entitled “An

Act relating to the liability of common carriers by rail-

road to their employees in certain cases” (approved

April 22, 1908), as the same has been or may here-

after be amended.