Petition for Writ of Certiorari — Chicago, M. & St. PR Co. v. Coogan

i yi | Office Supreme Court, U-

Fit2 Dp

FEB 9 1925

No oe 268 | WM. RB Sin

Supreme Court of the United States.

CHicaco, MILWAUKEE & St. PAuL Ramway Com-

PANY, Petitioner,

re,

Epvitn F. CooGAN, AS SPECIAL ADMINISTRATRIX OF

THE ESTATE OF WILLIAM COOGAN, DECEASED,

Respondent.

PETITION FOR WRIT OF CERTIORARI AND BRIEF IN

SUPPORT THEREOF, TOGETHER WITH NOTICE OF

APPLICATION AND ACKNOWLEDGMENT OF

SERVICE THEREOF.

Fr. W. Roor,

A. C. ERDALL,

Attorneys for Petitioner,

25 Milwaukee Station,

Minneapolis, Minnesota.

Of Counsel:

O. W. Dynes, Esq.,

Chicago, Illinois,

C. O. Newcomrn,

Minneapolis, Minnesota,

On Brief for Petitioner.

Hayward Brief Company, 601-607 Fourth Ave. So., Minneapolis

INDEN.

Page.

Pr err er rere oe ee ee ee ie 1

Petition for writ of certiorari... 6.6... eee ees 5

Statement Of facts 0.0.0... cee eee eee eee eens !

The questions SOECOR L. Sace cA s aA Re 13

go, Oe L Ee ee ee 14

Affidavit of FP. W. Root... 6.66. eens 15

Brief in support of petition for writ of certiorari. 16

TABLE OF CASES.

Perkins v. N. P. Ry. Co., 198 Fed. 219, 220...-- 16

Patton vy. Texas & Pacific Railway Company, 1

U.S. 658, 45 L. Ed. 261, 21 Sup. Ct. Rep. 275. . 16

United States v. Ross, 92 UL S. 281, 23 Sup. Ct

7 See eee eee ee IS

Marian J. Looney, Admy., etc. v. Metropolitan

Railroad Company, 200 U.S. £80, 26 Sup. Ct.

Southern Pacific Co. vo Berkshire, 254 B.S. 410i

11 Sup. Ct. Rep, 162. .... 6... c ee ee eee eee eee of

Supreme Court of the United States.

Cuicaco, Minwarker & Sr. Pavn RAMWway Com-

PANY, Petitioner,

rs,

Kerri FL Coogan, AS SPECIAL ADMINISTRATRIX OF

THE ESTATE OF WILLIAM COOGAN, DECEASED,

Respondent,

NOTICE OF APPLICATION FOR WRIT

OF CERTIORARI.

To Messrs. T. DD. Sheehan and H. J. Goodwin,

her attorneys of record :

You and each of vou are hereby notified that on

Monday, the 2nd day of March, 125, at the con-

vening of court, or as seon thereafter as counsel

can be heard, the undersigned will present and sub-

mit to the Supreme Court of the United States a

petition for writ of ceritorari and brief in support

thereof, praying the Honorable, the Supreme Court

of the United States, to cause to be issned a writ

of certiorari directed to the Supreme Court of the

State of Minnesota and the District Court of Dra

kota county of said state, commanding said courts

to certify to the United States Supreme Court, for

review, a transcript of the record and preceedings

of said District Court and said Supreme Court in

EEE ENGI» 6 TE ME Mg, eNO tat + ei

the cause entitled: “Edith F. Coogan, as Special

Administratrix of the Estate of William Coogan,

Deceased, Respondent, against Chicago, Milwan-

kee & St. Paul Railway Company, Appellant,” be-

ing No. 24105 of the state Supreme Court of the

state of Minnesota.

A true copy of petition for writ of certiorari and

brief in support thereof are hereto attached and

made a part hereof,

FW. Roor,

A. C. ERDALL,

Attorneys for Petitioner,

25 Milwaukee Station,

Minneapolis, Minnesota.

Of Counsel:

O. W. Dynps, Es.,

Chicago, Illinois,

C. O. NEWCOME,

Minneapolis, Minnesota,

On Brief for Petitioner,

Service of the foregoing notice of submission and

a copy of the petition fer certiorari and brief in

support thereof are hereby acknowledged — this

IA, day of.. DP ahiese %..«, 3936.

Attorneys for Respondent.

IN THE

SUPREME COURT OF TILE UNITED STATES.

Cuicaco, MILWAUKEE & ST. PAUL RAILWAY COM-

PANY, Petitioner,

US,

Eprru BF. CooGAN, AS SPECIAL ADMINISTRATRIX. OF

vue ESTATE OF WILLIAM COOGAN, DECEASED,

Respondent.

PETITION FOR WRIT OF CERTIORARL

To the Honorable, the Supreme Court of the

United States:

Now comes the Chicago, Milwaukee & St. Paul

Railway Company and respectfully petitions this

Honorable court to grant a writ of certiorari to the

Supreme Court of the state of Minnesota and to

remove therefrom to this court, for review, the ree-

ord in the case, there lately pending, entitled:

“Edith F. Coogan, as Special Administratrix of

the Estate of William Coogan, Deceased, Respond:

ent, against Chicago, Milwaukee & St. Paul Rail-

way Company, Appellant.” being cause No, 24100

on the docket of that court, the petitioner herein

being the said appellant-defendant.

A duly certified copy and nine uncertified copies

of the entire record, including all proceedings in

the District Court of Dakota county, Minnesota,

where the said cause was tried, and in the Supreme

Court of the state of Minnesota, to which an ap-

peal was taken from the judgment of said District

Court, are filed herewith under separate cover,

Petitioner representing that it is aggrieved by a

final judgment of the Supreme Court of the state

of Minnesota entered in said court on the 13th day

of November, 1924, in the aforesaid case; that the

matters at issue in said cause are wholly of a fed-

eral nature and are of peculiar gravity and: impor

tance in that said suit is to recover damages under

the Federal Emplover’s Liability Act of Congress

of April 22nd, 1908 (35 Statutes at Large 65) and

Acts amendatory thereof, for the death of William

Coogan, alleged to have occurred while said) Wil-

liam Coogan was in the employ of the petitioner

as a brakeman on an interstate freight train.

Petitioner presents this application for writ of

certiorari with a conviction of the justice of its

position and respectfully prays that its petition be

granted to the end that the particular points raised

herein may be fully and finally considered and de-

termined.

STATEMENT OF FACTS.

(Figures-in parenthesis refer to folios in printed

record. )

This action was instituted in the Distriet Court

of Dakota county, Minnesota, by the respondent,

Mdith FP. Coogan, as special administratrix of the

estate of William Coogan, deceased, to recover

damages for the death of William Coogan, who re-

ceived fatal injuries while employed by petitioner,

asa brakeman at Farmington, Minnesota.

a

SERS ENTE. <cenerennereenemnenennes

On July 14, 1923, about 7:00 4. M., petitioner's

freight train No, 92 operating from Farmington

to Austin, Minnesota, was being made up by a

switehing crew on track No. 1 of petitioners yard

at Farmington, Minnesota (ff. 67, 68 and 344).

Coogan, the deceased, wis rear brakeman of the

road erew Which was to have charge of the train

after it had been made up and when it had started

on its journey to Austin, Coogan was killed at

about 7 A. M. and before the train had been turned

over to the road crew. There was no eye witness

to the accident and no one knew in what manner

he met his death or what he was then doing. It is

conceded by both parties that the train contained

interstate cars and that the rights and liabilities

of the parties are governed by the Federal Em-

ployers’ Liability Act.

The tracks in the Farmington vard run east and

west. The most northerly track is known as the

main line track. South of and parallel to this

track there are a large number of yard tracks num-

hered consecutively 1, 2,3, ete. In making up

train No 92 cars were picked up from the various

tracks, pulled onto a so-called lead track at the

west end of the yard and kicked down to the east

on track No. 1. An iron pipe line three-fourths of

an inch in diameter, called an air pipe line, ex-

tended parallel to and about one foot south of the

south rail of track No. 1 (f. 422). Tt was fastened

at yarious points to the top of ties by iron clamps

or track spikes (If. 355 snd 356).

On the morning in question the first car kicked

6

east on track No. 1 was the caboose. The decedent

rode the caboose on this movement. Thereafter,

three cuts of cars were kicked onto track No. 1

from the west end and were coupled onto the ea-

boose by impact (ff. 120 to 123, inel. and 176 to TS,

incl. ).

Dubke, a member of the switching crew, rode the

head car of each one of these cuts and controlled

their movements by the hand brakes (ff. 11S to

21, inel., 17S and 179). When the first cut of cars

was coupled onto the caboose Dubke conversed with

Coogan, who was then standing on the ground be-

side the caboose (f. 133). This was the last time

anyone saw Coogan previous to the finding of his

dead body (ff. 132 and 133). After the three cuts

of cars had been kicked in on track No. 1, the en-

gine shoved all of the cars one and one-half or two

car lengths (ff ISl and 182). It was the duty of

head brakeman Delhanty, of the road crew, to cou-

ple up the air on the train (f. 128). After the road

engine had been coupled onto the train, Dubke, for

the purpose of accommodating Delhanty, started

back along the south side of the train and coupled

up the air at several different places (ff. 125, 129

and 130). While walking back along the train he

discovered Coogan’s body lying between tracks No,

land No. 2 (f. 130). The body was lving on its

back (f. 92) with the head towards the west (f.

95) parallel to track No. 1 and wholly outside the

south end of the ties (ff St and 92). The body

was located about a car length and a half west of

the caboose (ff. 51 and 52). Certain marks on the

men OE me

od

ground showed that the body had been dragged

about ten feet (f. 54). These marks or scufiing

on the ground were located outside of the south

ruil and extended from the rail out: to where the

body was found (f. 55). Blood was found on the

southeast wheel of the car coupled to the caboose

(if. 36, ST and 9S). The air was not coupled be-

tween the caboose and this car. The decedent's

hat and other articles were found between the rails

under or near the draw bar between the second and

third cars ahead of the caboose (ff. 104, 105 and

i42). Apparently the wheels had run over de-

cedent’s left leg and left arm (if. 144, 165 and 166).

West of the body the air pipe line bulged up from

the ties about three inches and bulged in toward

the rail from three to six inches (ff. 217, 864, 566

and 474). The bulge in the pipe was about 12 or

1p feet long (ff. 21S and 273). The east end of

the bulge was 15 feet west of the hat and other

articles mentioned (f. 468) and was from 20 to 50

feet west of the body (ff. 214, 215, 243, 346, 362,

467 and 468).

A witness for the plaintiff testified that a man

in coupling up air faces towards the engine. De-

fendant’s witnesses showed that an experienced

train man, in going in between cars to couple up

the air, invariably has his left foot inside the rail

(f. 482) and ordinarily has his right foot outside

the rail (ff. 429, 480 and 490). He faces the angle

cock (f. 487). Having in mind the train involved

in this case a oman stepping in between the cars

from the left or south side would face towards the

pret

Q

caboose or rear end of the train (ff. 480 and 481),

An experienced man would face towards the ca-

boose or rear end of the train when coupling up the

air from the left side. Tlowever, entering from the

north or right side he would face towards the head

end of the train. This is brought about by the facet

that a man facing the end of any car finds the air

hose is to the right of the draw bar and car coupler

which in turn are located at the center of the end

of the car (ff. 486 and 487).

The plaintiff introduced in evidence decedent's

shoes and called attention to the fact that the out-

side of the counter of the left shoe was scratched

and slightly dented in. The plaintiff did not show

that this condition existed immediately after the

accident or that it did not exist prior to the aecci-

dent. The undertaker, who was one of plaintiff's

witnesses and the only one who testified as to the

condition of the shoe in this respect, stated that he

noticed the dent and scratch in the shoe quite a

while after the accident and that it was first called

to his attention by plaintiffs counsel (ff. 146 and

147, 155 and 168). He had no personal recotlec-

tion of the condition of the shoe when it was taken

from decedent's body (f. 157). The shoe had been

kept in the undertaker’s garage (f. 119). There

is no proof to show that the shoe was not scratched

and dented during the time it was in the garage.

Mr. Coogan had worked for the defendant for

fourteen years prior to the accident (f. 293). Prae-

tically every terminal yard on the line of rail-

road of the defendant, as well as on the line of rail-

ET LT Ne TT

{)

way of other railway companies, contains an air

pipe line similar to the one involved in the instant

ease and such air pipe line ordinarily is placed on

top of the ties (If 417 to 421, incl). The air pipe

line in question was built three or four years prior

to Coogan’s death (if. 826, 334 and 424).

He had been working on trains in and out of

the Farmington yards since 1908, the year in

which the yard was built (f. 335). The plaintill

testified that decedent, her husband, had been work-

ing on trains No. 91 and 92 in and out of Parming-

ton practically all the time fora period of from

three to four months prior to his death CY, 303

and 33).

Train No. 91 was due to arrive at Farmington

at 3:00 P.M. and train No. 92 was due to leave

the same vard at 7:00 4. M. Por several months,

therefore, previous to July lth, the date of the

accident. when the train arrived at and left: the

Farmington yard, it would be daylight. Train No,

92 was ordinarily made up on track No. 1, on the

main line track, track No. 2 or No. 3. From each

of these tracks the air pipe line could be easily seen

(tt. 344, 345, 405 and 406).

The air pipe line had been in substantially the

same condition for five or six months before the

accident (f, 352).

At the close of all the testimony in the case,

defendant made a motion for a directed verdict: in

its favor on the ground that plaintiff had failed to

prove any actionable negligence against ihe defend.

ant, on the ground that any verdict in favor of the

MEDS Sa MRL ay 6M TE

10

plaintiff would, of necessity, be based wholly upon

speculation and conjecture and on the further

ground that the evidence conclusively showed that

Mr. Coogan, the deceased, assumed the risk caused

by the presence and condition of the air pipe line

in question.

The motion was denied and the jury brought in

a verdict for the plaintiil,

The defendant made a motion for judgment not.

Withstanding the verdict and this motion was de-

nied,

Judgment was entered in) the District) Court

of Dakota county in faver of the plaintiff! on March

10, 1924.

The defendant appealed to the Supreme Court of

Minnesota from such judgment and the judgement

was affirmed by said Supreme Court: on October

al, 1934.

Final judgment was entered in’ the Supreme

Court of the state of Minnesota on November 13th,

1924, in the sum of fourteen thousand three hun- ?

dred sixty-three and 29 100 (S14,565.29) dollars.

Under the undisputed evidence the judgment in

this case has been awarded and affirmed against

your petitioner under an erroneous interpretation

of the Federal Employers’ Liability Aet as applied

to the facts of this case, in the following partie-

ulars:

ROR RTI TTT

Error in permitting a recovery herein upon rights

ae Ee oe

asserted under the Federal Employers’ Liability

11

Act, April 22nd, 1908, 6. 149, 35) Stat. G5, as

amended April 5. 1910, & 143, 36 Stat. 291,

Error in submitting to the jury the question

whether or not under the Federal Employers’ Lia-

bility Act the defective air pipe line proximately

contributed to William Coogan’s death for the rea-

von that no evidence in the case will support such

a finding or conclusion,

Error in denying defendant's motion for a di-

rected verdict and in permitting the jury, under the

Federal Employers’ Liability Act to return a ver-

dict in favor of the plaintiff on account of the death

of William Coogan for the reason that the cause

of William Coogan’s death was speculative and

conjectural,

Le

Error in denying defendant's motion for a direct-

ed verdict and in permitting the jury to pass upon

the question as to whether or not decedent assumed

the risk of the defective air pipe line for the reason

that William Coogan, as a matter of law, assumed

the risk of such defective condition under the Fed-

eral Employers’ Liability Act.

V.

Error in denying defendant's motion for a direct-

ed verdict upon the ground that plaintiff failed

to prove a cause of action or right of recovery in

her favor under the Federal Employers’ Liability

Act or under any other federal act,

VI.

Error in denying defendant's motion for a direct-

ed verdict in her favor for the reason that under

the Federal Employers’ Liability Act William Coo-

gan assumed all risks to himself caused by the al-

leged improper construction and careless and negli-

gent maintenance of the air pipe line.

VII.

Error in denying defendant’s motion for a direct-

ed verdict made at the close of all the testimony

on the ground that under all the evidence in the case

William Coogan’s death is speculative and conject-

ural.

VIII.

Error in denying defendant's motion for judg-

ment notwithstanding the verdict upon the ground

that plaintiff failed to prove that the alleged de-

fective air pipe line proximately contributed to

William Coogan’s death.

PX.

Error in denying defendant's motion for judg-

ment notwithstanding the verdict on the ground

that under the Federal Employers’ Liability Act,

William Coogan assumed the risks to himself

caused by the alleged negligent construction and

maintenance of the air pipe line.

THE QUESTIONS INVOLVED.

The plaintiff's theory of the case is that dece-

dent stepped in between the caboose and the car

attached to it from the south side of track No. 1,

for the purpose of coupling up the air hose be-

tween those cars; that he faced towards the engine

and had his right foot inside the south rail and his

left foot outside the rail; that in making up the

train the cars were backed to the east and dece-

dent, in attempting to get out from between the

cars caught his left foot under the air pipe line at

the point where it was bulged and his foot became

fastened: that as a consequence he was caught by

the rigging on a moving car, thrown under the

wheels and killed. The only claim of negligence

is that the air pipe line was defective and that

such defective condition was the proximate cause

of decedent's death.

The first question, therefore, is whether or not

the evidence under the Federal Employers’ Liabil-

ity Act is sufficient to sustain a finding that the

alleged defective air pipe line proximately con-

tributed to the death of Mr, Coogan.

The second question is, Whether or not the dece-

dent, under the Federal Employers’ Liability Xet

assumed the risk of dangers incident to his work-

ing at or about the alleged defective air pipe line,

PES SP

.

*

Oe ores

PRAYER,

In order to correet the error complained of and

to the end that the right and liability of petitioner

may be determined in accordance with the federal

law, your petitioner prays that a writ of certiorari

may be issued under the seal of this court, direct.

ed to the judges of the Supreme Court of the state

of Minnesota and of the District Court of Dakota

county, commanding them and each of them to

certify and send to this court on a day certain to

be therein designated, a full and complete tran-

seript of the record and of the proceedings of the

said Supreme Court of the state of Minnesota in

the within cause to the end that the judgment of

said Supreme Court of the state of Minnesota in

said cause may be reviewed by this court as pro-

vided by law and that your petitioner may have

such other relief as to this court may seem appro-

priate.

Ciicaco, MILWAUKEE & St. Paun Ry. Co.,

Petitioner.

Fr. W. Roor,

A. C. Erba,

Attorneys for Petitioner.

ee

SraTe OF MINNESOTA,

SS

County of Hennepin.

F. W. Root, being first duly sworn, says that he

ix one of the attorneys for the petitioner, Chicago,

Milwaukee & St. Paul Railway Company; that he

has read the foregoing petition; that he has also

read the certified copy of the transcript of record

under the seal of the Supreme Court of the state

of Minnesota in the case of “Edith F. Coogan, as

special administratrix of the estate of William

Coogan, deceased, respondent, against the Chi-

eago, Milwaukee & St, Paul Railway Company,

appellant,” and that he is familiar with the same ;

that he has also read a copy of the opinion of the

said Supreme Court in said cause; that the mat-

ters of fact stated in said petition conform to said

record and opinion and are true to the best of his

knowledge, information and belief.

F. W. Roor,

Subscribed and sworn to before me this Sist day

of January, 1925.

A. E. SHARRETTS,

(Seal) Notary Publie,

Hennepin County, Minnesota.

My commission expires July Lith, 1928,

16

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARE.

Dip THE PLAINTIFE Prove Tuar THE ALLEGED Db-

recTIvVe Arm Pires LINE PROXIMATELY CONTRIL-

Urep Tro DECEDENT’S DeEATIL SO AS TO PERMIT A

Recovery UNver rik Feperan EMpioyvers’ Li-

miniry Acr?

Plaintiff! has evolved a theory as to how the acci-

dent occurred. Such theory is based upon a series

of presumptions and not upon facts proven in this

Case,

The plaintiff has an accident causing death and

a theory as to the way in which the accident oe:

curred but such theory is unsupported by the testi-

mony.

In Perkins vo N.P. Ry. Co., 198 Ped. 219, at page

225 the court points out that this is not a sufficient

basis on which to create a liability.

The leading case on this matter is Patton ¢.

Teras & Pacific Raihray Company, V9 U.S. Gx,

15 L. Ed. 261, 21 Sup. Ct. Rep. 275. We, therefore,

take the liberty of quoting rather extensively from

that decision, On page 277 of the opinion the

court said:

“Upon these facts we make these observa:

tions: First, that while, in the case of a pus-

senger the fact of an accident carries with

it a presumption of negligence on the part of

the carrier, a presumption which, in the ab-

sence of some explanation or proof to the con-

trary, is sufficient to sustain a verdict against

17

him, for there is prima facie a breach of his

contract to carry safely (Ntokes v. Saltonstall,

13 Pet. 181, 10 L. Ed. 115; New Jersey Re &

Transp. Co. v. Pollars, 22 Wall. 341, 22 L. Ed.

877; Gleeson v. Virginia Midland R. Co., 1A0

U.S. 435, 448, 35 L. Ed. 458, 463, 11 Sup, Ct.

Rep. 859) a different rule obtains as to an

employee. The fact of accident carries with

it no presumption of negligence on the part

of the employer; and it is an affirmative fact

for the injured employee to establish that the

employer has been guilty of negligence. Teras

& PLR. Co. v. Barrett, 166 U.S. 617, 41 L. Ed.

1136, 17 Sup. Ct. Rep. 707. Second, that in

the latter case it is not sufficient for the em-

ployee to show that the employer tay have

heen guilty of negligence; the evidence must

point to the fact that he was. And where the

testimony leaves the matter uncertain and

shows that any one of half a dozen things may

have brought about the injury, for some of

which the employer is responsible and for

some of which he is not, it is not for the jury

to guess between these half a dozen causes

and find that the negligence of the employer

was the real cause, when there is no satisfae-

tory foundation in the testimony for that con-

clusion. If the emplovee is unable to adduce

sifticient evidence to show negligence on the

part of the employer, it is only one of the

Inany cases in which the plaintiff fails in his

testimony; and no mere sympathy for the un-

fortunate victim of an accident justifies any

departure from settled rules of proof resting

upon all plaintiffs.”

See also:

Pittsburgh Coal Co v. Myers, 208 Ped,

221.

Nmith vo Ilinois Cent. Ro. Co., 200) Ped.

~~.

ededed,

PARTIE ACSIA BASSINET,

IS

Traur v. M. St. P. € 8. 8. M. Ry. Co., 89

Minn, 143.

Bruckman ve C. St. P.M. & OO. Ry. Co.,

110 Minn. 309,

Perkins vo GN. Ry. Co., 152 Minn, 226.

In ( nited States vr. Ross, 92 UL S. 281, 23 Sup. Ct.

Rep. T07, it is stated on page LOS:

“No inference of fact or of law is reliable,

drawn from premises whieh are uncertain,

Whenever circumstantial evidence is relied

upon to prove a fact, the circumstances mist

be proved, and not themselves presumed.”

The court on the same page states as follows:

“A presumption which the jury is to make is

not a circumstance in proof; it is not, therefore,

a legitimate foundation for a presumption.”

In the case of Marian J. Looney, Aduur., ete. vr.

Metropolitan Railroad Company, 200 U.S. 480, 26

Sup. Ct. 305, the United States Supreme Court on

page 306 lays down the following rule with refer-

ence toa presumption of negligence on the part of

the employer in a case in which an employee. is

killed:

“But the negligence of a defendant cannot be

inferred from a presumption of care on the part

of the person killed. A presumption in the per-

formance of duty attends the defendant as well

as the person killed. Tt must be overcome by

direct evidence. One presumption cannot be

built upon another.”

See also

Freese rv C., BL& QO. Ry. Co., decided by the

United States Supreme Court on Oc-

tober 15, 1925, and reported in t44 Sup.

Ct. Rep. 1.

19

The plaintiff claims decedent stepped in between

the caboose and the car attached to it, to couple up

the air.

After the accident the air was not coupled be-

tween these cars and there was blood on the south-

east wheel of the car ahead of the caboose.

Decedent may or may not have stepped in- be-

tween the caboose and the car next to it. Tle may

have started to get onto the west end of the caboose

just at the time when cars were kicked into the

enboose and on account of the impact been knocked

off and fallen on the track between the caboose and

the car next to it.

Ile may have started to go in between the cars

and tripped on the rail, on the end of the tie or on

the air pipe line at a point where it was not bulged.

He may have been in between the ears and stumbled

over the rail in getting out. He may have been

between the cars and when he heard them backing

up, have grabbed for a hand hold, missed it and

fallen. He may have been on top of the cars to

release the brakes and fallen between the caboose

and the cay next to it. No one saw the plaintiff

step in between the cars and it is a presumption

only that he did so.

It was the duty of the head brakeman of the

road crew to couple up the air and not decedent's

duty and therefore, it seems that a presumption

that he stepped in between the cars to couple up

the air would be unsupported by the evidence in

this case.

It is plaintiff's theory that decedent had his right

20

foot inside the rail and his left foot outside the rail,

Decedent's left leg and left arm were crushed and

apparently run over, Under these circumstances

the natural inference is that the left foot was in-

side the rail and the right foot outside. If the left

foot was inside the rail it was not canght under the

air pipe line outside the rail Tere again a pre-

sumption is indulged in without support in the evi-

dence and in this instance the presumption is not

consistent with the evidence in the case.

It is plaintiffs theory that decedent's left foot

Was caught and fastened under the air pipe line

at the point where the pipe was bulged. In sup-

port of this theory she introduced in evidence de-

cedent’s left shoe which contained a slight indenta-

tion and scratch on the outside counter. No one

noticed this condition of the shoe until a consid-

erable time after the accident and the funeral. De-

fore the dent and scratch was noticed on the shoe

the decedent’s shoes had been in the undertaker’s

garage for some time and no particular attention

had been given to them. Here, of course, the plain-

tiff indulges in the presumption that the shoe had

no dent or scratch on it before the accident and that

the shoe was scratehed and dented in the accident.

There is no proof to show what the condition of the

shoe was before the accident, what the condition of

the shoe was immediately after the accident or what

its condition was at the time it was taken off the

body by the undertaker. If the left shoe had been

fastened under the air pipe line the shoe would

naturally be scratched on both the inside and out-

ron

21

side of the foot. If the decedent’s left leg was run

over it is only natural to expect that the shoe would

be dragged on the ground, or hit a rock, a tie, a bolt

or a part of the car and as a consequence become

dented and seratehed. Surely a dent and seratch

on one side of the shoe would not prove that the

shoe was fastened under the air pipe line, There

was absolutely no proof of any scuffing or other

marks on the ties or the ground under the air pipe

line or any evidence to indicate that anything had

been caught under the air pipe line. The iron pipe

was old and of course rusty, but no proof was in-

troduced indicating that the rust was scraped off

at any place. There was no proof of any marks

on or under the pipe at any place. The proof was

undisputed that the pipe had been in substantially

the same condition for five or six months before the

accident and plaintiff has not and cannot, claim

that the pipe was bulged on account of the acci-

dent. The body was from 20 to 50 feet east of the

east end of the bulge in the pipe. Decedent's hat

and other articles were found 15 or more feet east

of the east end of the bulge in the pipe. The scuffing

and marks on the ground were found east of the

hat and other articles mentioned. There is, there-

fore, no proof to indicate that decedent was in the

immediate vicinity of the bulge in the air pipe line.

There is no evidence in the case which supports

a presumption that the decedent's left foot was

fastened under the air pipe line at the point where

the pipe was bulged.

As stated in the Patton case, supra, it is not suf-

l

UNE LAP SILA REAL LIL IO AT EL BIEN ID APSE EM A ES NR PO nS ee hn he

>

ficient for the plaintiff to show that the defendant :

may have been guilty of negligence but the evidence

must point to the fact that defendant was. As .

stated in the Looney case, supra, a right of recovery ;

cannot be based upon a series of presumptions. ;

Without any support in the evidence the plaintiff

indulges in the following presumptions :

1. That decedent stepped in between the caboose

and car attached to it to couple up the air hose.

2. That decedent had his right foot between the ‘

rails and his left foot between the south rail and

the air pipe line.

3. That the cars were moved before decedent

had a chance to couple up the air hose.

4.) That decedent endeavored to get out from be-

tween the cars. }

>. That decedent at that time was at the place

where the air pipe was bulged.

G. That decedent's left) foot) became fastened

under the round air pipe line. - d

7. That the shoe was not dented or seratcehed be-

fore the accident.

OTT

S. That the left shoe was scratched and indented

immediately after the accident.

9. That the left shoe did not become scratched

RT hy OR sere

or indented while on the floor of the undertaker’s

garage.

10.) That the dent and seratch on the left shoe

was caused by the foot being caught under the air

pipe line.

oe

2

,

11. That on account of decedent's left foot being

caught under the air pipe line he was caught by the

rigging of the car and was thrown under the wheels

and killed.

The difficulty with plaintiffs theory in this case

is that she has failed to prove facts from which the

ultimate inferences which she wishes to establish

can be drawn. She has merely suggested a series

of presumptions many of which are not even con-

sistent with facts proved in the case.

The weakness in plaintiffs case is that she has

no facts to show that decedent stepped in between

the cars. She has no evidence to show that he at-

tempted to come out from between the cars. She

has no evidence to show that his left foot ever be-

came fastened under the air pipe line at the point

where the air pipe line was bulged or at any other

point and she has no evidence to show that at any

time he was any nearer than 15 feet from the nearest

end of the bulge in the pipe.

It is respectfully suggested that plaintiff has

failed to prove that the alleged defective air pipe

line proximately contributed to William Coogan’s

death.

$e REORDER

24

DecEDENT ASSUMED THE Risk CAUSED BY TITE Con-

DITION OF THE AIR Pirge LINE AND CANNOT Re-

COVER IN THIS CASE.

The evidence is undisputed that decedent worked

on trains running into and from the Farmington

yards for a period of three or four months next

preceding the accident and during that time his

train left and arrived during daylight and he had

considerable occasion to be on and near track No,

1. He had a great many opportunities to observe

the condition of the air pipe line. He had had con-

siderable experience on trains running in and out

of the Farmington yards prior to the period just

above mentioned. The air pipe line had been in

substantially the same condition for a period of at

least five or six months before the accident and he

is of course presumed to have known of its location

and condition.

If he went in between the caboose and car next

to the caboose as plaintiff claims he went in with a

knowledge of the condition of the air pipe line in

question, he, of course, fully appreciated — the

dangers and risk of his working between the cars

in the vicinity of the air pipe line and he must have

appreciated the dangers to be reasonably an-

ticipated in working at and about such air pipe line

at the point where it was bulged.

Special attention is called to the case of Southern

Pacific Co. vr. Berkshire, 254 U.S. 415, 4b Sup. Ct.

Rep. 162. In the Berkshire case the United States

Supreme Court holds that an engineer who has

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passed over a particular route many times must be

presumed to know of the existence of a mail crane

when such mail crane was visible from the en-

gineer’s seat. This case we consider of special im-

portance on this feature of the case and we there-

fore take the liberty of quoting rather extensively

from it. On page 162, the court said:

“The facts so far as made detinite by the evi-

dence are not in dispute. Linder was employed

by the defendant as an engineer upon a train

running from El Paso, Texas, to Deming, New

Mexico. At Carney, in New Mexico, he was

found sitting on his engineer's seat unconscious,

with his right arm and pretty nearly half of

his body outside of the cab, leaning with the

right side and arm over the arm rest of the en-

gine. There was a cut about an inch over the

right ear. He had been struck by the end of

a mail crane or a mail sack that had been placed

on it to be picked up by a mail train following

Linder’s which was an extra carrying soldiers.”

On page 163, the court stated as follows:

“Linder has been upon this route for some

years, has passed over it many times and must

be presumed to have known of the crane. It

Was Visible from the engineer's seat, half a mile

ahead through a front window. About a mile

hefore reaching Carney, Linder had noticed

that the main driving pin on the engine was

getting hot, had crept out upon the running

board to see about it, and had returned. It

may be supposed that at the time of the ac-

cident he was leaning out of the side window

to look at it again and was acting in the course

of his duty. The position in which his body

was first seen and the place of the wound indi-

| 2 pe Tiwieaheies.

re = oe RR WR PLO A NEE LALLA RAE EERE AN Taney

26

cate that le was more than fourteen inches out

from the engine's side.”

On page 163, the court further said:

“It is going very far to leave it open to a

jury to attach liability in fort to a system by

which the end of the arms of postal cranes come

to fourteen inches from the car.

(3) But further, we must take it, as we

have said, that Linder perfectly well knew of

the existence of the crane where it stood, and

could have seen it from his seat had he looked,

long before he reached it. He entered the em-

ployment of the railroad when it nad this ap-

pliance manifest in its place. The only element

of danger that he may not have appreciated wis

the precise distance which the point of the

crane would reach. But an experienced rail-

road man cannot be supposed to have been ig-

norant that such a projection threatened

danger and, knowing so much, he assumed the

risk that obviously would attend taking the

chances of leaning well out from the train.”

See also:

Tuttle, Adm. ve Detroit, GoW. & M. Ry.

(‘o,, 122 UL S. 189, 7 Sup. Ct. Rep. 1166,

30 °L. Ed. iit.

Little Rock & M.R. Co. vr. Moseley, 56 Fed.

1009,

The air pipe line in) question constituted a

part of the equipment of the Farmington yard. If

Linder in the Berkshire case was presumed to have

known of the mail crane and to have known the

danger to be expected therefrom, if seems clear

that Coogan must be presumed to have known of

the air pipe line and its condition and to have

known the dangers to be expected therefrom by a

Pi ak aie A

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CS tod

brakeman coupling up the air on track No. 1 from

the south side of the train while cars were being

kicked into and against said train. Ile, of course,

knew that he might be required to get out from

between the cars very rapidly and that any obstruc-

tion might be fatal. Of course, it should be kept

in mind that it was the duty of the head brakeman

to couple up the air and not the duty of decedent.

We submit that the reasoning of the United

States Supreme Court in the Berkshire case is ap-

plicable and controlling in the present case on the

question of assumption of risk and that it appears

as a matter of law that Coogan assumed the

risk of the method of construction and condition

of the air pipe line in question and that such as-

sumption of risk under the Federal Employers’ Lia-

bility Act prevents a recovery on behalf of the

plaintiff in this case.

It is, of course, regrettable that no one knows

the manner in which Mr. Coogan met his death and

it is indeed unfortunate that the plaintiff is not in

a position to show the manner in which her husband

met his death in order that the court may be in a

position to decide whether or not the defendant com-

pany was or was not responsible for such death.

However, as indicated in the Patton and other

cases mentioned above, juries should not be per-

mitted to substitute sympathy for evidence in ar-

riving at verdicts,

The manner in whieh Coogan met his death

and the proximate cause thereof is purely specula-

tive and conjectural and the plaintiff has failed to

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