Opposition Brief — Pauly v. McCarthy

INDEX

SUBJECT INDEX

In the ordinary case a complete answer to a petition

such as this would be the oft applied policy of the

court against according an additional hearing

merely on the tendencies of the evidence where no

important question of law is involved

The Supreme Court of Utah has manifested a sincere,

conscientious and intelligent disposition to apply

the Federal Employers’ Liability Act strictly in

accordance with the applicable decisions of the

Supreme Court of the United States

Statement of the Case

Omissions and Misstatements of Facts in Petitioner’s

Statement of the Case

(1) Petitioner stepped off the caboose without looking

to see whether he had safe footing

(2) The record conclusively shows that petitioner would

have seen the danger if he had looked

(8) Petitioner was thoroughly familiar with the ex-

istence of the bridge between the tracks and thought

about the danger of the south side of the bridge

a very short time before dismounting

There was a wooden platform to the north of the

main line track, on which petitioner’s caboose stood,

on which petitioner could have safely dismounted

The evidence without contradiction negatives

Pauly’s contention that he had to dismount on the

south side because he saw fire from the south side;

demonstrates that he could have made his examina-

tion for the sticking brake from the north side of

the train; and establishes that he should have used

the bridge on the north side of his caboose to dis-

mount and cross the creek

INDEX—Continued

(6) The record establishes as matter of law that there

was no passing train on the passing track when

Pauly dismounted from the caboose ................

(7) There is no evidence that any Safety Rule required

petitioner to dismount from the south side of the

(8) There is no evidence ‘hat trains customarily

stopped or were inspected or repaired at Chacra.

The only evidence is that Chacra was a passing

track where trains pass and where emergency work

r . „

I The Supreme Court of Utah Properly set Aside the

Jury’s Verdict and Dismissed the Petitioner’s

Case because the Verdict of the Jury was not Sup-

ported by Substantial Evidence ................

Herein of Petitioner’s Point I.

II The Supreme Court of Utah properly held that there

was no Evidence of Negligence by the Railroad

in Failing to Exercise Reasonable care in Fur-

nishing Petitioner with a Safe Place of Work ....

Herein of Petitioner’s Point II.

There is no evidence that the absence of lights

or markers on the bridge constituted negligence ..

Petitioner makes no contention that there is any

evidence in the record that it was customary for

the Railroad to equip bridges situated like the

Chacra bridge with foot walks and handrails ....

III The Supreme Court of Utah Correctly Held that

there was no Evidence that the Railroad Should,

in the Exercise of Reasonable Care, have Antici-

pated that an Experienced Conductor would back

off a Caboose without looking and provide facili-

, ̃ ͤ ¹ðQäT eee

Herein of Petitioner's Point III.

16

21

21

INDEX—Continued

Page

IV The Supreme Court of Utah correctly held that a

Verdict should have been directed because the

Sole Proximate Cause of the Accident was Pauly’s

. ebeen vvonees 24

Herein of Petitioner’s Point IV.

D d ales bdunueduact 26

CASES CITED

Allison v. McCarthy, 106 Utah 278, 147 Pac. (2d) 870 3

Bailey v. Central Vermont Ry. Inc., 319 U. S. 350, 87

nn 1. 16, 18

Baltimore & O. R. Co. v. Berry, 286 U. S. 272, 76 L. Ed.

n enen see ee 19, 25

Bimberg v. Northern Pacific Ry. Co., 217 Minn. 187,

14 N. W. (2d) 410; certiorari denied, 323 U. S.

NI 20

Bly v. Southern Railway, 183 Va. 162, 31 S. E. (2d)

564; rehearing denied, 183 Va. 406, 32 S. E. (2d)

. ²˙ mꝛ... ů ̃ ÜUl cndddeesbeene 20

Brady v. Southern Ry. Co., 320 U. S. 476, 88 L. Ed. 189,

r Ken 15, 22, 24

Bruner v. McCarthy, 105 Utah 399, 142 P. (2d) 649. 3

Cawman v. Pennsylvania-Reading Seashore Lines, 110

II. 20

Ehalt v. McCarthy, 104 Utah 110, 138 P. (2d) 639. 3

Kenney v. Boston & Maine R. R., 33 Atl. (2d) 557 (N.

r ̃ AA 19, 24, 25

Murphy v. Boston and Maine Railroad, —— Mass.

—, 65 N. E. (2d) 9233333.

INDEX—Continued

Page

Pauly v. McCarthy, ——— Utah ——, 166 Pac. (2d) 501. 3

Rashaw v. Central Vermont Ry. Inc., 183 Fed. (2d)

253 (2d C. C. A. 1943)

Tennant v. Peoria & P. U. Ry. Co., 321 U. S. 29, 88

L. Ed. 322, 64 S. Ct. 409

Tiller v. Atlantic Coast Line R. R. Co., 318 U. S. 54,

86 L. Ed. 446, 63 S. Ct. 444

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1946

No. 443

HARRY O. PAUL,

Petitioner,

WILSON McCARTHY anp HENRY SWAN, TRUSTEES or

THE DENVER & RIO GRANDE WESTERN RAILROAD COMPANY,

Respondents.

RESPONDENTS’ BRIEF OPPOSING PETITION FOR

WRIT OF CERTIORARI

In the ordinary case a complete answer to a petition such

as this would be the oft applied policy of the Court against

according an additional hearing merely on the tendencies of

the evidence where no important question of law is involved.

Attention to this policy was called by Mr. Justice Roberts,

Chief Justice Stone and Mr. Justice Frankfurter concurring,

in his dissent in Bailey v. Central Vermont Ry. Inc., 319 U. S.

350, 87 L. Ed. 1080, 63 S. Ct. 1062. On page 1066 he said.

“And so the policy of the court has been to abstain

from taking a case even though it thought it erroneous-

ly decided below, whether on an issue of law or fact,

if the decision did not involve an important question

of law, did not create a diversity of decision in lower

courts, or would not seriously affect the administra-

tion of the law in other cases. And this has been

especially so where a decision below recognized the

controlling legal principles but was claimed to have

applied them improperly to the specific facts disclosed.

The instant case plainly belongs in the lass last men-

tioned. All members of the Supreme Court of Vermont

agreed upon the controlling legal rule. They sharply

and almost evenly divided on the question whether the

plaintiff's evidence brought her case within that rule.

What they decided, and what we decide, can add nothing

to the body of jurisprudence.”

That is precisely the situation in the case at bar. There

is no difference between the Supreme Court of the United

States and the Supreme Court of Utah or between the majority

and minority of the Utah Court as to the controlling legal

principles in the case at bar. If this Court grants certiorari

to review this case nothing will be added to the body of juris-

prudence respecting Federal Employers’ Liability Act cases.

There will only be an examination and decision by a third

court as to the evidence and its tendencies.

The Supreme Court of Utah has manifested a sincere,

conscientious and intelligent disposition to apply the Federal

Employers’ Liability Act strictly in accordance with the ap-

plicable decisions of the Supreme Court of the United States.

Petitioner makes the wholly unwarranted charge that

the Supreme Court of Utah, follows a policy “of frustrating

the operation of a Federal statute and ignoring and refusing

to follow the decisions of the United States Supreme Court—.”

See p. 5. The actions of counsel for the petitioner belie this

charge, else why do they select Utah as the forum in which

they institute F. E. L. A cases arising in States other than Utah

in favor of citizens of States other than Utah?

See:

Ehalt v. McCarthy, 104 Utah 110, 138 P. (2d)

639. Ehalt was a resident of Denver and was injured

while working in Denver.

Bruner v. McCarthy, 105 Utah 399, 142 P. (2d)

649. Bruner was a resident of Grand Junction, Colo-

rado, and was injured while working in Colorado.

Allison v. McCarthy, 106 Utah 278, 147 P. (2d) 870.

Allison was a resident of Colorado and was injured

while working near the Royal Gorge in Colorado.

Pauly v. McCarthy, 166 P. (2d) 501 (not yet re-

ported in Utah Reports). Pauly was a resident of

Grand Junction, Colorado, and was injured while on

duty near Glenwood Springs, Colorado.

The foregoing are only a few of the many cases that

counsel for this Petitioner have filed and are filing in the

Utah courts under the Federal Employers’ Liability Act against

the various railroads, involving accidents to residents of

foreign States, occurring in foreign States.

It is submitted that a reading of the four cases above

cited will demonstrate a disposition on the part of the Supreme

Court of Utah conscientiously to apply the Federal Employers’

Liability Act according to the applicable decisions of the

United States Supreme Court, having full regard to the broad-

ening of the Act which has followed the decisions commencing

with Tiller v. Atlantic Coast Line R. R. Co., 318 U. S. 54, 86

L. Ed. 446, 63 S. Ct. 444.

On page 24 petitioner contends that the Supreme Court

of Utah is “not in accord with the holding of this Court in the

Tiller case—” in regard to assumption of risk. It is sub-

mitted that the Utah court in the Pauly case manifested com-

plete sympathy with the decision in the Tiller case regarding

assumption of risk and that its decision is in no way based

upon assumption of risk. The court referred to assumption

of risk as “a cruel doctrine” and stated that it was fortunate

that it had been “forever abolished in the railroad industry.”

(R. 185.)

4

Statement of The Case

Respondents are constrained to make a statement of the

case and to point out the omissions and misstatements in

petitioner’s brief because Petitioner misstates and omits im-

portant evidence and facts.

Pauly, an experienced railroad conductor, was injured

when he backed off and dropped from a standing caboose (R.

92) in the night time without looking for safe footing (R.

133-135), in violation of Safety Rule No. 3 of the Company

reading:

“Before getting on or off equipment, employees

must look out for safe footing—.” (R. 7, 130, admitted

in evidence R. 131.)

Pauly knew this rule and knew it was necessary to look for

safe footing before stepping down. (R. 132.) There was no

footing whatever because the south step of the caboose was

almost flush with the south ends of the ties of the bridge.

(R. 30.) He dropped off into space and fell 17 feet to the

bottom of the creek. (R. 92.)

Pauly, if he had looked, could have seen that there was

no footing and that he would drop into the creek bed. (R. 52,

53, 55, 74, 76, 88, 101, 102, 114.) He had in his hands when

he dropped a lighted electric hand lantern (R. 91) and a

lighted yellow fusee (R. 91), either of which, if he had looked,

would have disclosed the situation and danger. (R. 52, 62,

157.)

Pauly thought about the danger of the bridge only a few

seconds before he dropped (R. 108) and realized he was near

it, but guessed that he was past the bridge by three or four

car lengths, (R. 109) (150 to 200 feet) (R. 38), and acting

upon that guess dropped off backwards without looking.

Pauly had no work to do on the bridge itself. (R. 88.)

The train had been brought to a stop at Chacra because

shortly before reaching there Pauly, his rear flagman Ventura,

the Engineer Linkins and the head brakeman all knew that

brakes were sticking, causing fire, on a truck of a car in the

train. (R. 36, 69, 86.) Pauly thought that the car in question

was ten to fifteen car lengths (500-750 feet) ahead of the

caboose. (R. 88.) It was Pauly’s duty as soon as the train

was stopped to dismount from the caboose and walk from 500

to 750 feet westerly to the car that was in trouble and eliminate

the sticking brakes. (R. 88.) Pauly had no work to do at

the bridge. On the contrary it was his duty, as he himself

testified, to proceed forthwith to the car that was in trouble

to fix it. (R. 88.)

The train had stopped on the main line which was the

southerly of the two tracks. North of it was the passing track.

The space between the two tracks was completely covered by

a plank footwalk, 12 feet wide with 7 to 8 feet clearance when

trains occupied both tracks. (R. 50.) Pauly could have dis-

mounted on it and crossed over the bridge on it on his way to

the car with the sticking brakes. Exhibit E (R. 207, admitted

in evidence R. 28), Exhibit M (R. 217, admitted in evidence

R. 29), Exhibit I (R. 223, admitted in evidence R. 28). Pauly

stepped off on the other side, the south side where there was

no footwalk. (R. 92.)

There was no train on the passing track when Pauly

stepped down. Nor was there any train on the passing track

while Ventura, after the accident, walked forward twenty to

twenty-five carlengths, 1000 to 1250 feet, and then returned

to the caboose. (R. 41, 46.)

Pauly could have proceeded safely along the north side

(i. e. the side on which there was a bridge) of the train to fix

the sticking brakes, as indeed Ventura actually did immediately

after the accident. (R. 41, 46.)

Pauly could have discovered and fixed the sticking brakes

from the north side (i. e. the side on which there was a bridge)

as indeed Ventura actually did. (R. 46, 60.)

Chacra, where the accident happened, is merely a switch

track siding. (R. 43, 44, 68, 69, 83, 84.)

Omissions and Misstatements of Facts in Petitioner’s

Statement of the Case

(1) Petitioner stepped off the caboose without looking

to see whether he had safe footing.

Petitioner’s brief, particularly on page 11, gives the im-

pression that the petitioner looked effectively before dis-

mounting from the caboose.

Pauly testified both in his deposition and on cross examin-

ation at the trial that he stepped off the caboose without

looking. His deposition was taken on August 1, 1944, six

months after the accident and less than two months before

the trial. In it he testified over and over again that he did

not look before he stepped down. The following answers

from Pauly's deposition were admitted by him on cross ex-

amination to be true:

Q. Did you look down there before you stepped?

A. No, it was all black to me as if I was on the

main line is all, on the side of the track. (R. 167.)

Pauly admitted this answer was true at R. 133, 134.

Q. You didn’t look before you stepped then?

A. No, my idea was I was going to go down to the

car and look at it as fast as I could while we were still

stopped ; I picked up the fusee, took my lantern, cracked

the fusee and stepped right off. (R. 167.)

Pauly admitted this answer was true at R. 134.

Q. Did you turn your lantern, the light of it, down

below where you were going to step, before you stepped

down?

A. I had it lit; I didn’t turn it downwardly; I

would have the light in my hand; as I cracked the

fusee I had it in my hand; I had this hand (indicating)

on the hand rail of the caboose on this side; as I stepped

down this hand would be here (indicating), the light

would be here (indicating); as I stepped down you

would figure you was on the ground ready to move.

(R. 167).

Pauly admitted this answer was true at R. 134.

Q. You didn’t look down?

A. No; you are standing on the end of the caboose

like this (indicating), you crack the fusee, the lantern

in your hand. (R. 167.)

7

Pauly admitted this answer was true at R. 134.

Q. You just stepped down?

A. T just stepped down. (R. 168.)

Pauly admitted this answer was true at R. 135.

Q. Without looking?

A. Yes, figuring that was the ground. (R. 168.)

Pauly admitted this answer was true at R. 135.

(2) The record conclusively shows that petitioner would

have seen the danger if he had looked.

Pauly in his brief claims it was so dark that he couldn't

see where he was stepping and attempted to justify his failure

to see that he was stepping off into space by alleging in para-

graph 6 of his complaint, “that owing to the weather condi-

tions and the darkness of the night as aforesaid, it was im-

possible for plaintiff to discover or ascertain the facts with

regard to the place where said caboose had been wrought to

a stop and plaintiff had no knowledge and did not know that

the said caboose had been and was stopped upon said bridge.”

(R. 3.) There was no evidence to support this allegation. On

the contrary the evidence affirmatively and without contra-

diction shows that Pauly could have seen if he had used his

lantern or fusee and his eyesight which was good. (R. 101.)

He testified that it was just commencing to snow and that

it was not snowing enough to interfere with his vision. (R.

102.) He saw the fire flying from the sticking brake ten to

fifteen cars (500-750 feet) ahead of the caboose. (R. 88.)

He was able to check the engine number on Train No. 20 as it

passed him. (R. 117.) He was able to see the mountains as he

came down the track from Funston to Chacra. (R. 114.)

Ventura, who dismounted only a few seconds before Pauly,

was able to see where he was stepping and that it was safe.

(R. 52.) The roadbed was slag but he was able to see it. (R.

52.) Ventura was using his lantern to illuminate his way as

he walked back from the caboose to flag and was able tc see his

way all along there. (R. 53.) After the accident, when Ven-

tura was in the creek bed some eighteen feet below the track,

he was able to see the steps of the caboose. (R. 55.) Linkins

also was able to see the position of the caboose from the creek

bed. (R. 74.) The head brakeman was able to see Pauly’s red

fusee a distance of eighty-six cars or substantially four

thousand feet. (R. 76.) Moreover, Ventura was able to see

the signal given by the head brakeman in response to the red

fusee the same distance. (R. 55.)

A lantern just like Pauly’s (R. 96) is in evidence as Ex-

hibit 3 (Admitted in evidence at R. 154) and a standard

yellow fusee was admitted in evidence at R. 158 to show the

degree of light available to Pauly and will be made available

by stipulation.

(3) Petitioner was thoroughly familiar with the existence

of the bridge between the tracks and thought about the danger

of the south side of the bridge a very short time before dis-

mounting.

Petitioner’s statement of the case would give the im-

pression that at the time he dismounted he was oblivious of the

fact that there was a bridge in his immediate vicinity.

Pauly, immediately before the accident, knew that he was

in the close vicinity of this bridge but thought he had passed

it by about three or four car lengths. (R. 108, 109.) Im-

mediately after the accident he said, “I thought I was past the

darned bridge.” (R. 51.) He thought about the bridge when

he was in the caboose a very short time before going to the

front end and dismounting. (R. 112.)

Pauly had been crossing over this bridge for seven years,

during which time he estimated: he had crossed the bridge

1000 times (R. 105); as many times in daylight as darkness

(R. 106) ; had walked over the bridge between the tracks fifty

times (R. 107); and in darkness had walked over the bridge

between the tracks 10 times. (R. 108.) He had observed and

knew that there was a foot walk between the tracks and that

there was no foot walk or rails on the outside of the tracks.

(R. 107.)

(4) There was a wooden platform to the north of the

main line track, on which petitioner’s caboose stood, on which

petitioner could have safely dismounted and crossed.

Petitioner’s statement of the case does not disclose this

important fact. It is demonstrated in Exhibit E (R. 207, ad-

mitted in evidence R. 28), Exhibit M (R. 217 admitted in

evidence R. 29) and in picture No. 10 of Exhibit I (R. 223,

admitted in evidence R. 28.) The bridge is 11 feet 4 inches

wide (R. 25) and is 92 feet 6 inches in length. (R. 25.) There

is seven or eight feet clearance when both tracks are occupied

by trains. (R. 50.) If petitioner had dismounted on this

bridge by getting off on the north side of the caboose he

would have been entirely safe and could have crossed the

bridge on the way to his place of work.

(5) The evidence without contradiction negatives Pauly’s

contention that he had to dismount on the south side because

he saw fire from the south side; demonstrates that he could

have made his examination for the sticking brake from the

north side of the train; and establishes that he should have

used the bridge on the north side of his caboose to dismount

and cross the creck.

Petitioner on page 11 states that the fire caused by the

sticking brake was seen on the south side, and in accordance

with established practice he alighted from that side to fulfill

his duty of inspecting and repairing the brake. The contrary

is true. The evidence shows without conflict that the identity

of the sticking brake could be and actually was discovered

from the north side of the train.

Ventura, testified that he actually found the sticking brake

by looking for it on the north side of the train in spite of the

fact that the fire had been seen flying from the south side

(R. 46, 58, 59, 60); that they could tell from what they saw

in the caboose that the fire was from a sticking brake (R.

47); that the fire was as bright as a yellow fusee (R. 48)

and that it could be seen fifty cars away (R. 48) ; that when

one brake sticks, all of them do (R. 49); that the truck on

which there is a sticking brake can be detected from either

side of the car. (R. 49.) On redirect examination counsel for

plaintiff attempted to put words into the mouth of Ventur

who was his own witness, that there would be no smoke coming

from the north side wheels. Ventura, however, testified posi-

tively that he discovered the sticking brakes from smoke

10

coming from wheels on the north side (the bridge side) of

the train. (R. 60.) At R. 60 he testified:

Q. The observation you made was with reference

to smoke and odor, and that is all?

A. Yes sir.

Q. You don’t know where it came from, do you?

A. I know where the smoke come from, it was

coming from the north side wheels.

Q. How do you know?

A. I seen them.

Ventura also testified without contradiction that no danger

would be encountered in walking between the tracks to look

for the sticking brake. (R. 50.) He also testified that if

another train came by on the passing track he could step in

between the cars of his train, thus having a safety zone every

fifty feet. (R. 63.) He also testified that he knew his own

train would not move. (R. 64.) This would be necessarily

true because it was stopped by a red fusee from the rear and

could not be moved until a signal was received from the rear

end.

Pauly was the only other witness who testified on the

subject and he also stated that when one brake is sticking all

four are sticking because they are all controlled by the same

brake cylinder, and that when one brake and wheel are hot

and smoking, the others are also. (R. 148-150.)

(6) The record establishes as matter of law that there

was no passing train on the passing track when Pauly dis-

mounted from the caboose.

On page 11 and throughout the brief petitioner contends

that one of the reasons he descended from the south side was

because passenger train No. 20 was then passing on the north

side. He pleaded it as his only excuse for getting off on the

south side. (R. 3.)

This contention was completely rejected by the Supreme

Court of Utah in the last paragraph commencing on R. 183

11

and ending on R. 184. It concluded that even giving Pauly

the benefit of his “reconstructed testimony” Train No. 20

would have passed before Pauly stepped down. This is un-

questionably so. Train No. 20 consisted only of an engine,

baggage car, mail car, coach and sleeper—an engine and four

cars. (R. 54.) It was going east and passed Ventura when

he was walking back to flag. (R. 38.) Even if Pauly checked

only the engine of No. 20 on the west end of the caboose, that

short train would have passed him before he could light his

fusee and dismount. But Pauly testified that he performed his

duty of checking all the equipment in Train No. 20, as re-

quired by Rule 810. (R. 116, 117.) All of Train No. 20 would

therefore necessarily have passed him before he even com-

menced to dismount. After that train passed no other train

passed during the 40 to 45 minutes until the ambulance came

and got Pauly. (R. 41.)

But Pauly definitely and positively testified that he was

on the back platform of his caboose as Train No. 20 passed

him; that while on the back platform he observed and checked

the equipment in Train No. 20; and that after Train No. 20

had passed him and he had checked the equipment he went

back into the caboose, put on his overcoat, went to the front

platform with his lantern lighted, lighted the fusee and then

stepped off the south side of the caboose step. His testimony

is as follows:

Q. At that time you were on the head end of the

caboose, is that right?

A. When I checked the train I was on the rear end.

Q. When you checked the train you were on the

rear end?

A. That’s right. When I said to the brakeman “I

will go over and check that car while we are meeting

another train.” Evidently I knew they had our signal,

they were going to stop there.

Q. You were on the rear platform?

A. Yes; I told him to take care of the hind end;

I went inside and put on my overcoat.

12

Q. That all happened after you checked the train?

A. That is, my going through the caboose to get

my coat, yes.

Q. Putting on your overcoat?

A. Yes, I had no reason to have it on—still in the

cupola; as I started to get down with it this train came

through the passing track, so I stepped to the rear plat-

form to check it and told my rear brakeman to take

care of the hind end, “I will check this car now.”

Q. When you say it was engine 802 did you then

know it was train No. 20?

A. Yes.

Q. Why?

A. I checked the passenger equipment too; that is

the usual passenger engine.

Q. Did you check the passenger equipment?

A. That’s right.

. As it went by you?

. Yes, that’s right.

When you were on the back platform?

Yes.

. What did the equipment consist of?

. Baggage car, mail car, day coach and sleeper;

four cars.

Q. Then after the train passed you going east you

went back in the caboose and put on your overcoat and

then went to the head end of the caboose, is that cor-

rect?

A. That is correct.

„ O > Oo > oO

Q. Was there any other equipment in the passing

track after train 20 passed you?

A. No, not right exactly then, no.

13

Q. Was there at any time that you saw?

A. No. (R. 163-164.)

At the trial petitioner’s counsel, by shockingly suggestive

questions, brought out that Pauly had “reconstructed” his

evidence on this subject. (R. 138.)

However, Pauly on cross examination affirmed the truth

of the evidence given on his deposition: that he checked train

No. 20 from the rear end of the caboose (R. 123); that he

checked the equipment of train No. 20 as it went by him (R.

126) ; that train No. 20 was checked by him to consist of four

cars, baggage, mail, day coach and sleeper (R. 127); that

after he checked train No. 20 from the back platform he went

into the caboose and got his coat (R. 126); and that he saw

no other equipment on the passing track at that time. (R.

128.)

(7) There is no evidence that any Safety Rule required

petitioner to dismount from the south side of the caboose.

On page 11 petitioner asserts that Ventura and Pauly dis-

mounted on the south side “in compliance with safety rules,”

reference being made to R. 38, 39. It will be found that Ven-

tura merely testified as follows:

Q. The south side. Have you had, as brakeman,

any instructions with reference to the side from which

to dismount?

A. Yes sir, its the best to mount on which side is

the safest.

Q. Which would be the safest side?

A. The left side.

Q. Why?

A. Because there was a train coming down the

pass, might fall, and fall right into the wheels of the

train.

Q. And so you dismounted, as you say, from the

left side?

A. Yes sir.

14

Ventura made no mention of any Safety Rule.

On page eleven also it is stated that the petitioner pre-

pared to alight from the train on the south side because the

Safety Rules required it and reference is made to page 90 of

the record. The only evidence by the petitioner on the subject

of rules is as follows:

Q. During the years that you have worked for the

defendant here as brakeman and as conductor, have you

ever had, or received any instructions with reference

to the proper side of the train from which to alight un-

der different circumstances?

A. Well, safe course is the course to pursue; one

of the rules of the company, always pursue the safe

course.

Q. Under that rule which would be the safe side

to alight from, if the train were stopped on the main

line track at Chacra?

Q. At night.

A. Left side of the train.

There is no other evidence on the subject.

(8) There is no evidence that trains customarily stopped

or were inspected or repaired at Chacra. The only evidence is

that Chacra was a passing track where trains pass and where

emergency work might be done.

Plaintiff alleged that freight trains “were customarily

and ordinarily stopped upon defendants’ main line and pass-

ing tracks” and that it was “usual, customary and necessary

for members of various train crews to pass along said trains”

for the purpose of examining trains. (R. 4.)

Petitioner on pages 8 and 10 assumes that these allega-

tions were proved.

The Supreme Court of Utah carefully scrutinized the

record, was unable to find any such evidence and so declared.

(R. 173-175, 178.) It summed up the evidence and record as

15

demonstrating, without conflict, that Chacra was nothing but

a passing track.

Respondents fully discuss the evidence and record under

II herein and will not repeat the discussion at this point.

The Supreme Court of Utah Properly Set Aside the Jury’s

Verdict and Dismissed the Petitioner’s Case because the Ver-

dict of the Jury was not supported by Substantial Evidence.

Herein of Petitioner’s Point I.

This court has repeatedly and recently ruled that under

the F. E. L. A. there must be evidence of negligence on the

part of the defendants and such negligence must be a proximate

cause of the accident and injury.

Brady v. Southern Ry. Co., 320 U. S. 476, 88 L. Ed. 189,

64 S. Ct. 232. Decided Dec. 20, 1943. The decedent was killed

by a car on which he was riding running over a derail switch.

There was a failure of evidence as to what person set the de-

rail which caused the accident, whether Brady or some other

person. The court held that a verdict was properly directed

for the defendant. On pages 479 and 480 the court said:

* * * When the evidence is such that without weigh-

ing the credibility of the witnesses there can be but

one reasonable conclusion as to the verdict, the court

should determine the proceeding by non-suit, directed

verdict or otherwise in accordance with the applicable

practice without submission to the jury, or by judg-

ment notwithstanding the verdict. By such direction

of the trial the result is saved from the mischance of

speculation over legally unfounded claims.

Tennant v. Peoria & P. U. Ry. Co., 321 U. S. 29, 88 L.

Ed. 322, 64 S. Ct. 409. Jan. 17, 1944. On page 32 the court

said:

In order to recover under the Federal Employers’

Liability Act, it was incumbent upon petitioner to prove

16

that respondent was negligent and that such negligence

was the proximate cause in whole or in part of the fatal

accident. Tiller v. Atlantic Coast Line R. Co., 318 U. S.

54, 67, 63 S. Ct. 444, 451, 143 A. L. R. 967.

Tiller v. Atlantic Coast Line Railroad Co., 318 U. S. 54,

86 L. Ed. 446, 63 S. Ct. 444. On page 67 the court said:

They leave for practical purposes only the question

of whether the carrier was negligent and whether that

negligence was the proximate cause of the accident.

Herein of Petitioner’s Point II.

The only allegation by petitioner that defendants failed

to exercise due care to furnish him a safe place to work is in

subparagraph B of paragraph 9. (R. 4.) It charges that the

Railroad failed to build, construct and maintain a walk with

handrails on the side of the bridge” and failed to provide any

lights or markers to indicate the presence or dimensions of

said bridge and failed by any means to protect employees

against the dangers of the bridge. (R. 4.)

Petitioner sought to force his case into the frame work

of Bailey v. Central Vermont Ry., Inc., 319 U. S. 350, 87 L. Ed.

1030, 63 S. Ct. 1062. But in that case the decedent was re-

quired to do work while standing on the bridge from which

he fell. Pauly, on the other hand, had no work to do while on

the bridge. On the contrary his immediate duty was to pro-

ceed westerly ten to fifteen car lengths (500 to 750 feet),

there to eliminate sticking brakes. Moreover, there was a per-

fectly safe way for Pauly to get to his place of work. He

could dismount on the north side of his caboose on the plat-

form for that purpose and proceed safely to his place of work.

———— D———

17

Inasmuch as Pauly had no work to do on the south side

of the bridge where he dismounted, he was reduced to the

necessity of claiming that every place in Chacra, including the

place from which he fell, was such that there must be a safe

walk-way, so that he would be caught when he dismounted

without looking. Petitioner makes that contention on page 17

and claims that the evidence of Ventura, Linkins and Pauly

supports it. (See page 15.) He contends that all three of

them testified that “this territory was a place of work.” No

reference to the record for such extraordinary evidence is

given. None such was given. It would have been objection-

able as a conclusion of law.

All of Ventura’s evidence on this subject will be found

at R. 43, 44; Linkins’ at R. 68, 69; and Pauly’s at R. 88, 89.

That evidence was carefully considered and analyzed by

the Supreme Court of Utah at R. 174, 175, 177 and it is sub-

mitted that it is correctly summarized at R. 177 and 178 as

follows:

The engineer, Linkins, did not so testify. The in-

ference from all the other testimony as to the use of

the passing tracks was that they were for the pur-

pose of passing and that, if there was trouble with

the train, it endeavored to reach the nearest passing

tracks in order not to block traffic; that this was in-

cidental and a convenience and that they were not used

generally for inspection and if used to inspect in case

of trouble that such place was no more a place to work

in the matter of inspection or repairs than was any

other similar part of the railroad line.

The bridge at Chacra might have become a place of work

under certain circumstances. Suppose for example a car had

to be dumped, as in the Bailey case, and the employee had to

stand on the south side of the bridge to manipulate the dump-

ing mechanism, it would have become a place of work. Or

suppose the fire on the trouble car was caused by a hot box

on the south side (as Justice Turner erroneously assumed in

the case at bar, R. 195) and that car stopped on the bridge

so that to fix the hot box Pauly had to work while on the ties

18

or stringer on the south side of the Chacra bridge, it might

well be as to him under those facts a place of work.

But merely because a certain spot on a railroad is a place

of work under certain facts and circumstances, it does not

follow that it is such under all facts and circumstances. Thus

in the Bailey case, suppose there was no car on the bridge

and the decedent, instead of standing on the edge of the bridge

to manipulate the dumping mechanism was merely crossing

from one side of that bridge to the other to get to the place

where he was to work and, instead of using a perfectly safe

platform walk between the rails was walking along that same

stringer and fell therefrom. Obviously that stringer would

not be a place of work as to him under those circumstances.

It is uncontradicted that Pauly’s only purpose was to

proceed to the car with the sticking brakes and cut out the

air brakes on that car. This could have become necessary any

place on the railroad. It did not pertain particularly to a pass-

ing track. This train went as far as the side track at Chacra

only because it was near at hand. (R. 70, 86.) Otherwise

it would have been stopped on the main line between stations.

Pauly had no work to do on the bridge. (R. 88.) He would

use the bridge only to cross the creek to the car with sticking

brakes. To do this he had a perfectly safe walk way between

the main line and passing tracks.

If the railroad was required to regard this bridge as a

place of work which it must keep safe so that conductors could

back off cabooses without looking. it would follow that every

foot of ground, not only in the Chacra siding but over the

entire railroad, would have to be kept in like condition. A

brake may stick any place on the railroad. If it sticks and is

sufficiently dangerous, the train must be stopped out on the

main line where there is no siding at all. It might be stopped

on trestles, mountain sides, etc. (R. 133.) It merely happened

that this sticking brake was seen at a time when the train was

close to the Chacra siding and under such circumstances that

the trainmen concluded they could safely go on to that

siding.

No authority supports petitioner’s contention. He relies

primarily on Bailey v. Central Vermont Ry. Inc., 319 U. S.

19

350, 87 L. Ed. 1030, 63 S. Ct. 1062. The difference between

the two cases is pointed out above.

A recent case which distinguishes the Bailey case on facts

much like those in the case at bar is Kenney V. Boston & Maine

R. R., 33 Atl. (2d) 557 (N. H. Sept. 1943). Kenney was killed

while serving as head brakeman of a freight train, when he

stepped into space from the side ladder of a box car which

had been stopped on a bridge which had no walk or guard rail.

The deceased gave the signal to stop. After the stop the

engineer saw the deceased with his lighted lantern climb down

the side of the car and fall into the creek below.

The plaintiff contended that the Railroad was negligent

in not providing the bridge, as a work place, with a cat walk

and a rail. The Supreme Court of New Hampshire held as

matter of law that there was no duty on the part of the railroad

to anticipate that Kenney would use the bridge as a work place.

The court said on page 560:

Considering the circumstance of the distance of

the bridge from the two switches, there is not the

slightest evidence that the defendant or any of its

agents or employees should have anticipated that the

deceased in the course of his duties would have occasion

to alight upon the bridge. As far as appears, he had

occasion to alight on the main track only at the switches

and station. The test of the duty of the defendant to

make the bridge safe as a work-place being anticipation

(cf. D’Ambrosio v. Boston & M. R. R., 81 N. H. 119,

124 A. 551) no duty in that respect can be found. The

bridge was not a workplace in the sense that might

perhaps have been found if the shifting operations were

likely to result in a car standing on the bridge.

Although the Supreme Court of Utah was unwilling to

regard Baltimore & O. R. Co. v. Berry, 286 U. S. 272, 76 L. Ed.

1098, 52 S. Ct. 510, as a controlling authority (see pages 178,

179), nevertheless the holding of this court in that case as

follows:

“If negligence caused the injury, it was exclusively

that of respondent” (the brakeman and plaintiff)

negatives petitioner’s contention that failure to have a wa

or other device to catch trainmen who dismount without loo

ing is a failure to furnish a safe place of work. It was sor

garded in the Kenney case.

In addition to the Bailey case, Petitioner relies on Cai

man V. Pennsylvania-Reading Seashore Lines, 119 Fed. (2¢

832, (3rd C. C. A.), Bly v. Southern Railway, 183 Va. 16

31 S. E. (2d) 564, rehearing denied, 183 Va. 406, 32 S. |

(2d) 659; Bimberg v. Northern Pacific Railway Compan

217 Minn. 187, 14 N. W. (2d) 410, (certiorari denied, 323 |

S. 752, 89 L. Ed. 602, 65 S. Ct. 87; Rashaw v. Central Vermon

Railway, Inc., 133 F. (2d) 253 (2 C. C. A. 1943); Murphy

Boston and Maine Railroad, — Mass. ——, 65 N. E. (2d

923

The Cawman case was regarded, correctly it is submitte:

by the Supreme Court of New Hampshire in the Kenney ca:

and by the Supreme Court of Utah in the Pauley case (see !

181) as without authority because it is impossible to unde

stand either basic facts or the charge of negligence.

The Bly case is readily distinguishable because Bly ha

to dismount from the caboose for the purpose of back flagging

the caboose steps extended out beyond the edge of the trest

on both sides; Bly, encumbered with his signaling imped

menta, had to swing around the end of the caboose platfor:

from the steps in order to get on to the bridge. He fell dow

under the steps of the caboose where it had stopped and ws

killed. The court indulged the presumption of due care appli

able in death cases and not applicable in such cases as Pauly’

where Pauly took the witness stand and testified that he di

not use any care whatever. He could have descended betwee

the tracks on a perfectly safe bridge.

The Bimberg case is within the doctrine of the Baile

case. The decedent under direction from his superior wa

working on the bridge, using a lining bar to straighten th

railroad track. He could not be elsewhere.

In the Rashaw case it was necessary for the decease

brakeman to cross the bridge as he did cross and the bridg

was not in standard condition, that is, it was under repair an

was covered with ice.

21

In Murphy v. Boston and Maine R. Co., the court con-

cluded that decedent fell from a sea wall along which he had to

pass to reach his engine, unprotected by a guard rail. This case

is like the Rashaw, Bly and Bimberg cases as distinguished

from the Kenney and Berry cases and the case at bar.

There is no evidence that the absence of lights or markers

on the bridge constituted negligence.

Tne allegation regarding lack of lights comes to nothing

because there is no evidence that the Denver and Rio Grande

Western or any other railroad in the United States has ever

placed or maintained lights or markers in such position.

Ventura and Linkins testified on direct examination that

there were no lights on the bridge. On cross-examination Ven-

tura testified that there never are any lights on bridges or

along passing tracks; that it is always left to trainmen to

see conditions by their lanterns; and that railroads furnish

electric lanterns, batteries and light globes for their use. (R.

44.) Linkins also on cross-examination testified that rail-

roads never have lights on bridges to illuminate the bridges.

(R. 73.) There is no evidence to the contrary of that of Ven-

tura and Linkins.

Petitioner makes no contention that there is any

evidence in the record that it was customary for the Railroad

to equip bridges situated like the Chacra bridge with foot

walks and handrails.

Therefore, respondents will refrain from discussing the

record on that subject.

The Supreme Court of Utah correctly held that there was

no evidence that the Railroad should, in the exercise of reason-

abie care, have anticipated that an experienced Conductor

would back off a Caboose without looking and provide facilities

to catch him.

Herein of Petitioner’s Point III.

Petitioner expresses consternation at such a holding. It

is elementary in the law of torts. This court recently reiterated

the doctrine.

Brady v. Southern Ry. Co., 320 U. S. 476, 88 L. Ed. 189,

64 S. Ct. 232.

The court held that it was not reasonably to have been

anticipated that the condition of the derailer and worn rail

would cause the accident. On page 483 the court said:

* Bare possibility is not sufficient. Mil-

waukee, etc., R. Co. v. Kellogg, 94 U. S. 469, at page

475, 24 L. Ed. 256; “But it is generally held, that, in

order to warrant a finding that negligence, or an act

not amounting to wanton wrong, is the proximate cause

of an injury it must appear that the injury was the

natural and probable consequence of the negligence or

wrongful act, and that it ought to have been foreseen

in the light of the attending circumstances.” Events

too remote to require reasonable provision need not be

anticipated.

On page 484 the court said:

The mere fact that with a sound rail the accident

might not have happened is not enough. The carrier’s

negligence must be a link in an unbroken chain of

reasonably foreseeable events.

This court in the Brady case also pointed out that a rail-

road is not obligated to furnish an absolutely safe place of

work but only one that is reasonably safe.

It held that although it was a bare possibility that strik-

ing a derailer from an unexpected direction would cause an

accident that it was so unusual that provision to guard against

it was beyond the requirements of due care. On page 483 the

court said:

The Supreme Court of North Carolina (222 N. C.

at page 370, 23 S. E. 2d at page 338) was of the view

that striking a derailer from the unexpected direction

“was so unusual, so contrary to the purpose” of the

derailer that provision to guard against such a happen-

ing was beyond the requirement of due care. With this

we agree. Bare possibility is not sufficient.

An accident and injury are always possible. Merely be-

cause an accident occurs and an injury is suffered is no evi-

dence of negligence.

Throughout his brief petitioner argues that if the bridge

at Chacra had had guard rails or a walkway or lights on the

south side the petitioner would not have been injured. This

is the typical “hind sight” argument which runs all through

petitioner’s brief—the defendant was negligent because the

place of work must have been dangerous because petitioner

fell and if the place had not been dangerous petitioner would

not have fallen. It reasons in a circle and begs the question.

Moreover, it is pure speculation to assert that Pauly would not

have been injured if there had been a walk and rail. It would

depend on how wide the walk might be, the position of the rail,

and how he stepped and landed. It is within the realm of

reasonable speculation that he might have received just as bad

injuries as in fact he did.

Petitioner’s contention comes to this, that the railroad

should anticipate that an experienced conductor, with seven-

teen years experience as a railroad trainman, knowing of the

rule that he must look for a safe place to alight before stepping

off trains, would in violation of that rule, and with ample

facilities to see, knowing that he was near and might be on the

bridge, back off the train without looking, and that the rail-

road should have either a walk with a rail to catch him or hang

life nets over the edge of the right of way if nothing else would

be feasible.

On page 11 petitioner makes the argument that the south

side was the safe and proper side from which to alight. His

own evidence proves that that was not his judgment. He

thought about the bridge and thought he had passed it. (R.

24

108, 109.) After the accident he exclaimed that he thought

he was past the “darned bridge.” (R. 51.) Except for his

mistake or inadvertence, the inference is clear that he wouldn't

have stepped down on the south side but would have stepped

down on the platform to the north.

Pauly’s complaint recognizes that he would not have dis-

mounted on the south side but would have used the safe passage

way over the creek on the north side of his train except that he

alleged that train No. 20 was passing. His only allegation ex-

plaining why he chose to step off on the south side is that

Train No. 20 was passing and therefore it was dangerous to

get off on the north side. (R. 3.) As the record demonstrates

Train No. 20 had passed when he dismounted.

IV

The Supreme Court of Utah correctly held that a verdict

should have been directed because the sole proximate cause

of the accident was Pauly’s own negligence.

Herein of Petitioner’s Point IV.

If negligence of respondents was not a proximate cause

and if the sole proximate cause of the accident was petitioner’s

own negligence, there can be no recovery under the F. E. L. A.

This Court in the Brady case said on page 484:

The carrier’s negligence must be a link in an un-

broken chain of reasonably foreseeable events.

Kenney V. Boston & Maine R. R., 33 Atl. (2d) 557 (N. H.

Sept. 1943). The facts are stated under the previous heading.

On Page 561 the court said:

* * * If he had known where he was and had

stepped off as he did, his negligence would have been

the sole proximate cause of his injuries and death.

So also in Baltimore & O. R. Co. v. Berry, 286 U. S. 272,

76 L. Ed. 1098, 52 S. Ct. 510, the court on page 512 said:

* * V» If negligence caused the injury it was

exclusively that of the respondent. Proof of negligence

by the railroad was prerequisite to recovery under the

Federal Employers’ Liability Act (45 U. S. C. A. Secs.

51-59).

The test laid down by the Brady case is whether the alleged

negligence of the railroad in not having a footwalk and hand-

rail on the south side of the bridge, in addition to the platform

on the north side, is a link in an unbroken chain of reasonably

foreseeable events. If the chain of events was not reasonably

foreseeable by the railroad, its failure to have a footwalk and

handrail is not the proximate cause of the accident.

Under III it is argued and submitted that it was not

reasonably to be anticipated or foreseen that Pauly would be-

have as he did. If so, then the undoubted negligence of Pauly

in violating rules of the company and stepping off the caboose

without looking was the sole proximate cause of the accident.

Is it reasonable to require the railroad to anticipate that

Pauly would violate its rules? Is it not reasonable for the rail-

road to anticipate that Pauly would comply with its rules? If

Pauly had complied with either of two rules this accident would

not have occurred. If he had descended from the rear end of

the caboose as required by Safety Rule 3 (R. 7, 130, admitted in

evidence R. 131) he would not have been injured. If he had

looked out for a safe footing before stepping down from the

caboose, as required by Safety Rule 3, he would not have been

injured.

In the Kenney case it is said that if Kenney had known

where he was and stepped off as he did, that his negligence

would have been the sole proximate cause of the accident. No

one would contend the contrary. But Pauly knew where he was.

He knew that he was in the near vicinity of this bridge. He

thought about the bridge and the danger of it when he was in

the caboose just before he went to the front platform and

stepped off. To be sure, he thought he was three or four car

lengths past the bridge. Of course, he could not be certain of

that and knew that he could not be certain of it. Nevertheless

he backed off the caboose without looking. It is submitted

that Pauly’s negligence was the equivalent in legal effect of

stepping off the caboose in spite of the fact that he knew where

he was, and that his behavior is within the doctrine of the

Kenney case.

For those reasons Pauly’s violation of the safety rules was

the sole proximate cause of the accident.

CONCLUSION

It is respectfully submitted that the petition should be

denied.

W. q. VAN Corr,

DENNIS McCARTHY,

Attorneys for Respondents.