Respondents Brief — Gulf, M. & NR Co. v. Wells

INDEX

. Page

Statement of Case....................1,2,3,4 45

Brief of Argument ae | Ft

. Did the court err in refusing to direct a verdict

,, AA FT

Did the court err in refusing to grant petitioner's

instruction, that if the crew of the engine did not

know respondent was not aboard the train, to find

r ee

Did the court err in refusing to grant petitioner's

instruction that if the slack in the train occasioned

the lurch, then they must find for the petitioner 7 11412

TABLE OF CASES

Texas and Pacific Railway Company vs. Abe Behymer,

189,—U._ 8 486, 23 Sup. Ct. Rep. 622, Great North.

ern Railroad Company vs. O. B. Knapp, 210— U. 8

464, 466; 69 L ed. 745, 751, 36 Sup. Ct. Rep. 399,

Seaboard Airline Company vs. Padgett, 296 U. 8

688. 673; 59 L. ed. 777, 781, 35 Sup. Ct. Rep. 481;

Seaboard Airline Company, vs. Koennecke, 296 U

S. 352, 355 I. d.. 36 Sup. Ct. Rep. 126, Walters

Pierce Oil Company vs. State of Texas, 212 U. 8

86, 29 Sup. Ct. Rep. Great Northern Railroad Com.

pany vs. Donaldson, 246 U.S. 121, 38 Sup. Ct. Rep

230... ; 647

Birmingham, etc Company, vs. Wilmer, 97 Alabama,

165, 11 Sou. 886 - ®

Southern Railway Company vs. Dickson, 211 Alabama.

481, 100 Sou 655 1 10

IN THE

SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1926

NO. 328

GULF, MOBILE & NORTHERN RAILROAD COMPANY. Petitioner

Vs.

W. F. WELLS, Respondent

BRIEF FOR RESPONDENT

STATEMENT OF CASE

W F. Wells, respondent, brought this suit in the Circuit

Court of Jones County, Mississippi, against the Gulf, Mo-

bile and Northern Railroad Company, petitioner, for per-

sonal injuries, in which court there was a verdict and judg-

ment for respondent and the case was appealed to the Su-

preme Court of the State of Mississippi, where judgment

was affirmed.

The declaration is in three counts, only one of which

is necessary to notice on this appeal, and that is the second

count of the declaration. In this second count, respondent

based his right to recover upon the following allegations of

negligence:

“That plaintiff, while engaged as a brakeman for

said defendant on the said train, and while do-

ing and performing the duties of the said brakeman

in the town of Stratton, an incorporated town in the

State of Mississipp' about 100 or 200 feet of the

depot at Stratton on the line of the Gulf, Mobile

and Northern Railroad Company, the plaintiff un-

dertook to get on the said freight train, at a time

when the train was moving, as it was his duty to

do, and as he caught hold of the hand-iron on siad

train, he stumbled on a piece of coal which was

negligently left on the yard and just at the time

he stumbled, the engineer on said train gave a

very sudden and very unnecessary jerk of said train

and carelessly and negligently jerked him from

said train and caused him to fall on the ground,

causing him to suffer very serious and permanent

injury, which is more fully set out herein.”

To this allegation and declaration petitioner filed a

plea of the general issue.

The facts developed on the trial of the case show that

the respondent was engaged in the performance of his duty

as a brakeman on a freight train of the petitioner; that on

the occasion of the injury complained of, the crew in charge

of petitioner's train had just completed some switching on

the yards of petitioner in the town of Stratton, and that

the train was made up and ready to go. That the train in

question was headed south on the main line tracks of pe-

titioner. The engineer on said train was in the cab on the

west side of the engine, the fireman was in the cab on the

east side of the engine, the conductor and flagman were in

the caboose at the rear of the train and respondent was on

the east side of the train near the caboose. It was a light

train with very few cars attached thereto. Respondent

“high-balled” the fireman, who was taking signals for the

engineer, that he was ready to go. Just after the “high-

ball” signal was given, the conductor, who was in charge of

the train, whose orders it was respondent's duty to obey,

ordered respondent to throw a derail switch about 50 feet

away from the caboose. Respondent threw this switch after

the train had been set in motion, and then ran back to catch

the moving train. Just as respondent took hold of the grab-

iron on the east side of one of the cars in said train, he

stepped upon a lump of coal, his foot turned, and at the

same time, the engine of said train gave a very unusual jerk

or lurch.

“Q. Tell the jury just how you were injured?

A. As I grabbed the grab-iron I stepped on this

piece of coal and I went down and the engine

gave an unusual jerk and threw me and my

knee struck on the crossties.” (R., p. 21).

A jerk or lurch such as he had never before experienced

before on a train.

“Q. When you were on a train you have had such

a severe jerk as you had there?

A. No.

Q. You never had that?

A. No.

Q. This was a jerk such as you never experienced

before on a train that right?

A. Yes.” (R., p. 37).

(and he was an experienced brakeman)

“Q. Have you ever been employed by the G. M. &

N. R. R.?

. ͤ d LN RNR Ags ween er ny N

Yes.

In what capacity?

Brakeman.

When employed by them?

In April, May, part of June and July, 1924.

When you went to work in what capacity

did you work?

My job?

Yes?

As brakeman.

Worked all the time as a brakeman?

Yes.” (R., p. 19).

A very unnecessary lurch on a light train, such as

the train in question.

O OP OPop

. You say the run in of the slack gave a lurch

dose not the engine sometimes give a lurch

to a train?

A. Yes.

Q. And if a light train be more liable to give a

lurch than a heavy train?

A. Would not give the lurch——would not be

necessary.” (R., p. 55).

This lurch or jerk jerked respondent loose from the

train and thereby caused him to fall on the end of the cross-

ties, which caused the injury complained of. This jerk,

or lurch of the train was given at a time when the fireman

who was sitting in the engineer's stead, and taking signals

from the respondent, knew, or by the exercise of reasonable

care could have known, the position of respondent.

“Q. Which side of the train was that on?

A. Left hand side facing South.

Q. Which side of the train did the conductor

work on?

On the same side.

The engineer—I mean.

Right hand side.

When he is on the right hand side who is it

gives him orders on the left side?

Fireman—taking signals.

Was the fireman on the left side?

Yes.

Was he in a position to see where you were?

Yes.

And could see where you were?

ves.“ (R., p. 24).

>O>O>O> rer

The case was submitted to the jury upon the issue of

whether or not the respondent's injuries were proximately

caused by a sudden or unusual jerk of the train, at a time

when he was attempting to board it. These issues were

sharply drawn by the pleadings and by the evidence, and

the instructions fairly presented the law, and most abunbant

ly presented the law for the petitioner, as will be shown by

the record. (R., p. 11, 12, 13).

There was a verdict and judgment for the respondent,

and the case was appealed to the Supreme Court of the

State of Mississippi, which court affirmed the judgment,

and petitioner brings the case here on writ of certerori.

BRIEF OF ARGUMENT

Counsel for petitioner in his brief to this court assigns

only three grounds of error in the court below, namely :

First:

That the court erred in refusing to instruct the

jury at the close of the whole case, to find for the defendent.

LN ree * e

Second:

That there was error in refusing to grant petitioner

the following instruction:

“The court instructs the jury for the defend-

ant, that if you believe from the evidence, that the

crew of the engine did not know that the plaintiff

was not aboard the train, it is your sworn duty to

find for the defendant, even though you may believe

that an unusual lurch was given the train.”

Third:

“That the court erred in refusing to grant petition-

er the following instruction:

“The court instructs the jury that even though

you may believe from the evidence that there was

an unusual lurch, still if said lurch was occasioned

by the slack between cars running in or out, it is

your sworn duty to find for defendant.”

We will attempt to answer the alleged errors complained

of in the order named.

ARGUMENT

I.

DID THE COURT ERR IN REFUSING TO DIRECT A

VERDICT FOR PETITIONER?

In deciding this question, this court will take the most

favorable statement of plaintiff's case to be true, and if

when looked at from its most favorable light, there is evi-

dence sufficient to show negligence, proximately causing

respondent's injuries, this court will not disturb the judg-

ment.

Texas and Pacific Railway Company vs. Abe Behymer,

189 US. 486 32 Sup. Ct. Rep. 622. Great Northern Rail

7

road Company vs. O. B. Knapp, 240 U. S. 464, 466; 69 L ed.,

745, 751, 36 Sup. Ct. Rep. 399, Seaboard Air Line Company

vs. Padgett, 236 U. S. 688, 673; 59 L ed. 777, 781, 35 Sup. Ct.

Rep. 481; Seaboard Air Line Company vs. Koennecke, 296

U. S. 352, 355 L ed., 36 Sup. Ct. Rep. 126, Walters Pierce Oil

Company vs. State of Texas, 212 U. S. 86. 29 Sup. Ct. Rep.

Great Northern Railroad Company vs. Donaldson, 246 U. S.

121, 38 Sup. Ct. Rep. 230.

The respondent testified that at the time of the injury

he attempeted to catch the moving train and that just as he

took hold of the grab-irons on the side of the box car, that

the engine gave an unusual jerk, (R., p. 21.); a k such as

he had never experienced before on a train, (R., p. 37), and

that he was an experienced brakeman, (R., p. 19); that this

jerk or lurch of the train jerked him entirely loose from the

train and that his injuries were caused thereby.

Petitioner's conductor, one of petitioner’s witnesses

on the trial of the case in the court below, testified that

such a lurch was unnecessary in handling a train like the

one in question, (R., p. 55). Respondent also testified that

this lurch or jerk of the train was given at a time when the

fireman, who was sitting instead of the engineer on his,

respondent's, side of the train, taking signals from respond-

ent, and when he knew, or could have known respondent

was about to board the train.

Can this court say, as a matter of law, that such a state-

ment of facts are not sufficient to show negligence? We

do not think so. This court. in the case of Texas Pacific

Railway Company vs. Abe Bahkmer, supra, a case, the facts

of which are similar to the facts in this case, had this to say:

“No doubt a certain amount of bumping and

jerking is to be expected on freight trains, and,

under ordinary circumstances, cannot be complain-

ed of. Yet, it can be avoided, if necessary, and

when the particular and known condition of the

eke ata

train makes a sudden bump, obviously dangerous

to those known to be on top of the cars, we are not

prepared to say that a jury would not be warranted

in finding that an easy stop is a duty.”

It has been the rule of this court that questions as to

whether or not jerking and lurching of freight trains was

negligence on the part of those in charge of the operation

of such trains, under certain circumstances were questions

to be decided by the jury, and not questions of law to be

decided by the court, but we submit that, taking the most

favorable statement of this case for respondent, as the

record discloses, that the court would be warranted in say-

ing as a matter of law, that such handling of a train, under

such circumstances, constituted negligence on the part of

those in charge of the operation of the train.

In the case of Birmingham, etc., Company, vs. Wilmer,

97 Alabama, 165, 11 Sou. 886, where the court had under

consideration the question of a lurch or jerk of a train where-

by a man was injured, the court had this to say:

“Moreover, it is not disputed that plaintiff

was knocked over by, or fell off the train in con-

sequence of this jerk. This was, of itself, some

evidence for the jury that the jerk was unusual,

and negligently severe.”

In the case at bar, it was not disputed that respondent

was jerked from the train by the sudden lurch. Applying

the same principle of law, this was, of itself, some evidence

for the jury that the jerk was unusual and negligently

severe.

Counsel for petitioner takes up a great deal of his time

in arguing conflictions in the testimony, and quotes the

parts of the record most favorable to his cause, but we sub.

mit that when the most favorable statement of the case

for respondent, disclosed by the record, is taken, that there

E RMN NAT 15) tS RIT AE OD

was sufficient proof of negligence to warrant the finding

in favor of respondent.

It is urged by counsel for petitioner, that the evidence is

not sufficient to show that the engineer caused the lurch,

but in this contention, he quotes only from his own witnesses.

Respondent says, (R., p. 21.) that the engine gave a sudden

lurch, and he was an experienced brakeman, just as much

so as the other members of the crew in charge of said train,

and even though it might be said that he did not see the

engineer cause the lurch, he had the same right to state,

from his opinion, what caused the lurch, as did the other

members of the crew, and then it was a question for the

jury to decide, and to which they had a right to apply their

common, every-day experience as men, and to judge from

all the facts, the surrounding circumstances, and from their

experiences as men, what caused the lurch or jerk.

We are aware that the members of this court are

human beings, and that they have had some experience in

riding trains and observing the operation of trains, and they

will know that the contention that an engineer in charge

of the operation of a train cannot cause a jerk or lurch of a

train, is too frivilous to deserve serious consideration.

Again counsel for petitioner states, on page 14 of his

brief, that:

“Respondent swears that the jerk was un-

usual, He does not say that it was violent or that

it Was unnecessary.”

but in this, we insist that counsel is in error.

On page 37 of the record, respondent swears that this

jerk or lurch was such a jerk or lurch as he had never ex-

perienced before on a train, and petitioner's witness, the

conductor in charge of the said train, testified that such a

jerk or lurch was unnecesasry, (R., p. 55). So we submit

that there was sufficient evidence to show negligence, when

RRR

10

taken in its most favorable light for the respondent, that

the evidence was conflicting, and under this state of the

case, this court will not disturb the judgment.

I

DID THE COURT ERR IN REFUSING TO GRANT

PETITIONER'S INSTRUCTION THAT IF THE CREW OF

THE ENGINE DID NOT KNOW RESPONDENT WAS NOT

ABOARD THE TRAIN, TO FIND FOR PETITIONER?

We insist that this instruction did not state the law

applicable to the facts in the case. Actual knowledge on

the part of the crew of the engine was not necessary for

them to be negligent in the operation of the train, but if,

by the exercise of reasonable care, they could have known

of this, respondent's position at the time of the injury, ther

they would be guilty of negligence in doing the act, the re-

sult of which, respondent was injured.

The Supreme Court of Alabama, in the case of Southern

Railway Company vs. Dickson, 211 Alabama, 481; 10 So

665, says:

“Upon a review of our cases dealing with lia-

bility of Railway Companies for injuries caused by

jars or jerks in the operation of their trains, we

have recently said:“

“These cases indicate that the sudden jars or

jerks in the movement of trains may be held negli-

gent only when they are violent enough to natural

ly and probably result in injury to someone on the

train who is known to be, or to probably be in a

position of peril from such a movement, and when

they are unnecessary, under the circumstances of

the particular case.”

Further on, in the same opinion, the court says:

“We cannot, however, for this cause, reverse

rr Pe SING INR

11

the judgment for the reason that the admitted al-

legation was nevertheless made an issue on the

trial and the jury was clearly and specifically in-

structed (Charges 20, 22 and 23) that plaintiff

could not recover unless he showed that the en-

gineer operating the train knew, or in the exer-

cise of reasonable care ought to have known, that

the plaintiff was in, or would probably be in a posi-

tion of peril at the time the jerk or shock was

caused, if it Was caused.”

In this opinion the true rule is stated. It was not in-

cumbent upon respondent to show actual knowledge on the

part of th ecrew of the train of his position of peril at the

time of the lurch or jerk, but if they knew, or in the exer-

cise of reasonable care could have known his position, then

they would be liable. Hence, we submit that the instruction

about which counsel for petitioner complains, does not prop-

erly state the law applicable to the facts.

The trial court granted petitioner an instruction ac-

curately stating the rule applicable to the facts, which in-

struction reads as follows:

“The court instructs the jury for the defend-

ant, that if you believe from the evidence that the

crew of the train did not know that the plaintiff

was aboard the train, and was guilty of no negli-

gence in not knowing, it is your sworn duty to find

for the defendant, even though you may believe

that an unusual lurch was given the train.” (R.,

pp. 12 and 13).

DID THE COURT ERR IN REFUSING TO GRANT

PETITIONER'S INSTRUCTION TO THE EFFECT THAT

IF THE LURCH WAS OCCASIONED BY SLACK THE

JURY MUST FIND FOR PETITIONER?

Counsel for petitioner complains of the refusal to grant

his instruction to the effect that even though the jury may

believe from the evidence that there was an unusual lurch,

stili if such lurch was occasioned by the slack between the

cars running in or out, it was their sworn duty to find for

the defendant. This instruction does not correctly state

the law. The slack in the train running in or out, might

have occasioned the injury, and yet might not have been

the proximate cause of the injury, or the sole cause of the

injury.

If petitioner's instruction had stated that if the jury

believed that the slack running in or out was the sole cause

or the proximate cause of the injury, this would probably

have stated the correct rule of law, but it did not so state

the rule.

Respondent, therefore, respectfully submits that pe-

titioner’s assignments of error are groundless, and that his

petition should be dismissed and the judgment of the State

Court affirmed.

Respectfully submitted,

W. CALVIN WELLS,

Attorney for Respondent