# Petition for Writ of Certiorari — O. M. Scott & Sons Co. v. Noll > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0348%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 411 U.S. 965 ## Text a a ne aaa ee ae flrs dt Pe Eatalinsdroc's Nets idm sli arte dict celta tb Io! TOR FOR Te eT eve rere eer. , . , q IN THE SUPREME COURT OF THE UNITED STATES October Term 1973 JESSE L. SMITH, PETITIONER versus ILLINOIS CENTRAL RAILROAD COMPANY, INTERNATIONAL PAPER COMPANY, and AMERICAN MOTORISTS INSURANCE COMPANY PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRUMFIELD & BRUMFIELD H. Alva Brumfield, OI 509 St. Louis Street Baton Rouge, Louisiana 70821 Attorneys for Jessie L. Smith, Petitioner Franklin Press, inc. . ont 9 for all future litigants under the Federal Employers Liability Act. Not only is the concept of the employer’s liability for any contributing negligence eroded, but the highly question- able defense of unavoidable accident is abused by application to a situation where it could not possibly obtain. It is for these reasons that petitioner prays that the writ be granted. Respectfully submitted, H. ALVA BRUMFIELD, IOI BRUMFIELD & BRUMFIELD 509 St. Louis Street Baton Rouge, Louisiana 70821 Attorneys for Jesse L. Smith, Petitioner 10 PROOF OF SERVICE I, H. Alva Brumfield, III, attorney for petitioner, and a member of the Supreme Court of the United States, hereby certify that on this day I served copies of the foregoing Petition for Writ of Certiorari on Boris F. Navratil, Esquire, of the firm of Breazeale, Sachse & Wilson, 701 Fidelity Na- tional Bank Building, Baton Rouge, Louisiana 70801, and Roger M. Fritchie, Esquire, of the firm of Durrett, Hardin, Hunter, Dameron & Fritchie, 614 Louisiana National Bank Building, Baton Rouge, Louisiana 70801, counsel for respon- dents. Baton Rouge, Louisiana, this ___ day of March, 1974. H. ALVA BRUMFIELD, II i a ee ll APPENDIX *A” IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 72-3378 JESSE L. SMITH, Piaintiff-Appellant, versus ILLINOIS CENTRAL RAILROAD COMPANY, ET AL, Defendants-Appellees. Appeal from the United States District Court for the Middle District of Louisiana (November 13, 1973) Before WISDOM, GEWIN and CLARK, Circuit Judges. PER CURIAM: This is an action for damages brought by the plaintiff-appellee Jesse L. Smith against his employer, the Illinois Central Railroad Company, the International Paper Company, and the Paper Company’s insurer, American Motorists Insurance Company, to recover for injuries he suffered while riding on the side of a railroad car filled with pulpwood. The accident occurred at one of the Paper Com- pany’s woodyards. The trial court entered judgment for the defendants after the jury returned verdicts based on special interrogatories finding that neither the Paper Company nor 12 the Railroad had been guilty of negligence; nor had the plain- tiff been guilty of negligence. We affirm. Smith was the conductor on an Illinois Central train making a run from Baton Rouge, Louisiana, to Vicksburg, Mississippi. On March 26, 1970, the train stopped at the Paper Company’s yard in Centreville, Mississippi, to pick up several freight cars loaded with pulpwood which were ready for ship- ment to the company’s mills near Vicksburg. Such cars are “wood racks” in railroad vernacular. The plaintiff’s injury occurred while the train was performing the switching opera- tions necessary to connect the wood racks to the rest of the train. In performing those switching operations, the engineer had to drive the train’s engine onto a siding paralleling the main line, where the wood racks were loaded and where they stood while awaiting shipment. The train had to be coupled with the wood racks on the siding track. After the coupling, the cars were driven to the main track, where they were to be connected with the rest of the train. Smith’s injury occurred after the train had been coupled with the wood racks and was on its way to the main line. When the train had moved eight or ten car lengths after the coupling, pulpwood logs began to fall off the top of one of the wood racks. The plaintiff was riding by holding on to the grab irons on the leading end of the car immediately following the car from which the wood was falling. When the falling wood began to strike Smith, he jumped from the train, swinging out to avoid falling under the wheels. He suffered a broken pelvis and leg injuries which required the amputation of his leg. The plaintiff raises six issues on appeal. The first two concern the sufficiency of the evidence: first, the plaintiff argues that the trial judge should have granted him judg- ment notwithstanding the verdict and, second, that failing a grant of judgment n.o.v., the trial judge should have granted 13 his*motion for a new trial. Upon a review of the record as a whole, we find that the evidence was sufficient to support the jury’s findings that none of the three parties involved had been negligent. See Boeing Company v. Shipmen, 5 Cir. 1969, 411 F.2d 365. We therefore find the trial judge properly denied the motions for judgment n.o.v. or, in the alternative, for a new trial. The plaintiff’s other four objections all concern the trial judge’s charge to the jury. The first is a challenge to the judge’s instruction on unavoidable accident.’ The 1The trial judge’s charge was, if anything, unfavorable to the defendants, especially to the railroad company. In denying the plaintiff's post- trial motions, the trial judge observed: “. . . I don’t suppose there was any portion of the charge of this court that had more em- phasis or was more emphasized than that the railroad could be held liable if they were found to have contributed in any way whatsoever, even in the slightest, to this accident.” The charge concerning the railroad’s liability was repeated not less than five times. In instructing the jury on the question of the railroad’s liability the trial judge said “...he [plaintiff] must prove that negligence on the part of the railroad which he asserts, contributed in whole or in part, even the slightest, to his injuries.” Later, he cherged: “The difference between the two defendants is that under what we call the FELA — the Federal Employers Liability Act — the railroad who is governed by that Act, is held liable if their negligence contributed even the slightest to the accident .. .” The third time the judge stated: “Going back, ter a moment, if there is negligence on the part of the railroad and if it contributed in whole or in part, even the slightest, to the accident, you must find them guilty of actionable negligence.” it was after this third repetition, inviting the jury to find the railroad liable to the plaintiff if its negligence, even the slightest, contributed to the plaintiff's injuries, when the court informed the the jury that the mere occurrence of the accident did not mean that anyone was negligent, as sometimes accidents happen which are inevitable. At two other points in the charge the trial explained the plaintiff's rights of recovery against the railroad “if you find that its negligence played any part, however small, in causing plain- tiff injury.” After properly explaining “unavoidable accident,” the trial judge did not err in adding: “. . . Lastly, in connection with negligence and proximate cause the mere happening of an accident does not neces sarily mean that someone is negligent. In law we recognize what are termed unavoidable or inevitable accidents. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been caused by negligence, even though such accident should have been avoided by the 14 plaintiff argues that there was no evidence in the record to support this instruction. We cannot agree. In the first place, there was specific evidence tending to show that the accident was or could have been unavoidable: the brake- man and the engineer of the train both testified that in similar operations there was always slack between the cars, and that a certain amount of jerking was therefore inevi- table. It could have been inferred from that testimony that in the particular operation in question, the principal reason the wood had fallen was that it had been shaken loose by the inevitable jerking during the operation. Both the brake- man and the engineer testified that there were no harsh couplings and that the entire switching operation was smooth and void of any “bangs” or irregularities. Three other wit- nesses testified that they saw nothing unusual and heard noth- ing unusual. It is significant too that the plaintiff never settled on a specific theory of how the accident had hap- pened. In his complaint and throughout the trial the plain- tiff attributed the accident to any of a number of causes, including (1) the negligence of the engineer in operating the train at too fast a speed after the coupling operation; (2) the negligence of the Paper Company in failing properly to maintain its track; (3) the negligence of the Paper Company in failing to load the wood racks properly. There was no substantial proof that any of these possible causes had in fact caused the accident, and the plaintiff in making his case constantly shifted ground in trying to fix liability for his injury on one or the other of the defendants. It was as plausible to find the accident a result of unavoidable causes exercise of exceptional foresight, skill or caution, still no one may be liable for injuries resulting from it.” Again: “. . . It was possible for you to find that neither of the de- fendants was guilty of negligence at all. You may find that the plaintiff was the only one negligent. You may find that the plaintiff was not guilty of negligence. You may find that only the paper company was guilty of negligence and proxi- mate cause, or you may find that the railroad was guilty of negligence which contributed in some way to the accident.” a ae ee weet Ms BG as it was to find the accident the result of any of the alter- native causes cited by the plaintiff. Consequently, we cannot say that the record did not support the trial judge’s instruc- tion on unavoidable accident. The plaintiff’s other three objections to the charges are without merit. The second objection is to the trial judge’s instruction on intervening cause, and the third is to his instructions on contributory and comparative negligence. With respect to both of these instructions, it is clear that even if the instructions were erroneously given, they could not have prejudiced the plaintiff. The jury would have needed | to consider those two instructions only if it had first found one or the other of the defendants negligent. Since its ver- dict was on special interrogatories to the effect that neither of the defendants was negligent, it is clear that the jury had no reason to consider the challenged instructions. The final challenge is to the failure of the trial judge to instruct the jury on the Federal Safety Appliance Act, 45 U.S.C. § 2 (1970). We find no error in the judge’s action in this regard. There was no evidence in the record support- ing the conclusion that the railroad had violated the Federal Safety Appliance Act. AFFIRMED. APPENDIX “B” UNITED STATES COURT OF APPEALS Fifth Circuit DENIALS OF REHEARING EN BANC (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) Group 1—Denials where no member of the panel nor Judge in regular active service on the Court requested that the Court be polled on rehearing en banc. Group 2—Denials after a poll requested by a member of the panel or a Circuit Judge in regular active service. Group 3—Denials on the Court’s own motion after a poll requested by a member of the panel or a Circuit Judge in regular active service. Docket Title Number GROUP 1 Bastida v. Henderson ............. 73-2399 Ps a ree rere 73-2019 EO A Pere rr errs 73-2087 NMS Industries, Inc. v. Premium Corporation of America, Inc. .... 73-1869 Robinson v. Jefferson County Board of Education .............. 73-2134 Smith v. Illinois Central Railroad Company ............... 72-3378 eG Wee Sanco duns ch ewceen es 6 . 73-1615 Date of Denial 1/14/74 1/16/74 1/14/74 1/10/74 1/10/74 1/10/74 1/11/74 Citation of Panel Decision E.D.La., 487 F.2d 860 N.D.Tex., 486 F.2d 219 N.D.Fla., 486 F.2d 1400 361 F.Supp. 129 N.D.Miss., 487 F.2d 292 N.D.Ala., 485 F.2d 1381 M.D.La., 486 F.2d 943 W.D.Tex., 487 F.2d 206 eee ee ee ew ee eee e eee eeee 17 73-2290 73-2416 73-2216 1/17/74 1/16/74 1/16/74 M.U.F 18., 466 F.2d 1402 E.D.La., 487 F.2d 462 W.D.Tex., 486 F.2d 1402 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0348%3A1. Public record. Not legal advice.