Petition for Writ of Certiorari — Kansas City Southern R. Co. v. Jones

Supreme Court brief1928

Ask Donna

What actually matters in this document.

Text

INDEX.

Petition for writ of certiorari

PA HUMERG IL EIT. oaks 646655 6540s eee cee ow baa CeO RS

SNUOGN G45 Vie 5 695 v5 S40 SN b SOSA R NAST CAN UES OO Ew beE Ee oiain en

I. The Supreme Court of Texas, in a case governed by

the Federal Employers’ Liability Act, erred in fail

ing to hold that DPD. R. Ferguson was guilty of

negligence directly contributing to his death......

HI. The Supreme Court of Texas, in a case governed by

the Federal Employers’ Liability Act. erred in fail

ing to hold that DPD. Ro Ferguson was guilty of

negligence which was the sole proximate cause of

ORG CHB rvs sons bv tekeee eee bo ecGha see eee reek

IT. The Supreme Court of Texas, in a case governed by

the Federal Employers’ Liability Act. erred in fail

ing to hold that the death of ID. Ro Ferguson was

the result of rixks assumed by him................

IV and V. The Supreme Court of Texas, in a case aris

ing under the Federal Employers’ Liability Aet,

And on the facts in this case, erred in failing to

reverse outright the judgment of the district court,

and in reversing the judgment of the Court of

NS Fh 5.6 esc d eSvh dh SSA ew athe as ee kad

VI. The Supreme Court of Texas, in a case governed by

the Federal Employers’ Liability Aet. erred in fail

ing to follow the rules of law established by the

Federal courts in construing the Federal lem-

PROPHETS TARY ACC. ss ose saes cas cv sg arcs teaeers

TABLE OF CASES,

Aerkfetz v. Humphreys, 145 U. S., 418. ..........ccccccecees

Allen v. New York, ete., Co., 98S C. C. A. 258: 174 Fed., T74....

Atchison, ete., Co. ve MeNulty, 285 Fed. 97 (262 UL 8. Ti)...

mirnieon, etc.,, Co. v. Weyer, 8 Fed. (20), 30......00.0.0000%

Atlantic, etc., Co. v. Mcleod, 11 Fed. (2d), 22. .....6..cccceee

Blunt v. Pennsylvania, ete., Co. ) Fed. (20). 595. ......0..0000.

Bradley v. Missouri, etc., Co., 288 Fed., 484.........00.cc.eeee

Bush Vv. Baltimore, etc., Co., 288 Fed., 845. ...........ceses00.

Chesapeake, etc., Co. v. Nixon, 271 U. S., 218............. 8.9,

Chicago, ete., Co. v. Andrews, 64. C) AL S90; 130 Fed. G5...

amcago, ete, Co. Vv. Coogan, 271 U. B., 420... ccc cesses nesses

Chicago, ete., Co. v. Houston, 95 U.S... GOT... ce. ee ee eee

—H959

il INDEX,

Craine v. Metropolitan, ete., Co., 246 Mo., 895........... whee

Dernberger v. Baltimore, ete., Co. 15 C. CL AL 551: 248) Bed.,

Se kde eRRAST Ss AO PULA Ween h eye bee SEOs KSLMCEN REE EE ECS §

Dishon v. Cincinnati, ete. Co. 666) CL AL S45: 158 Fed. 471...

District of Columbia v. Moulton, 182 U.S. OT6. 0.0.00. 6. ee eee

Eiiott v: <ticaes, ete.. Oo. WOU. Bi, Dabs vce cwvsesewosesca>

Emberlin v. Wichita Falls, ete., Co. 267 8S. W.. 4552 8. €.,

ee oe eee eee es ee eee TT eee

Erie, etc., Co. v. Kane, 55 C. C. A., 129; 118 Fed., 225.........

Frazier v. Interstate, ete., Co., 273 Fed. 181 (256 UL S., TOR)... 8

Freeman v. Galveston, ete. Co. 285 S. W.. G07; S.C. 273

Se ee Arr renee Tre eee Tee eee tee eh MSs)

Freese v. Chicago, etc., Co, 268 UL S., Din cccccc ccc ccs ccc encce S.16

Garlich v. Northern, ete., Co., 67 GC. C. AL 237: 157) Fed.

ED 2056 aa REA DK Se EMAL ETN REAESE AN SOO HOES CEN UNSERE CES 9,23

Goldberg v. Chesapeake, ete., Co., 211 Ky.. 115... 6... eee eee eee 9, 28

Jacobs v. Atchison, etc., Co., 97 Kams., 247........ sce. ceevees iH)

Jones vy. Kansas City Southern Ry. Co., 281 SS. WL oes 2 8.

DRS Be W., SELS SS BW DOG vv cicccvesipscsccveesy sys ee 23.8

Jones v. Louisiana, ete., Co., 243 S. W., 976; S.C. 255 Ss. W..

ee A RURASEN EK SORTS OEMS CESSEEADS EV SOS CO SVOUNS eee ob, bo

Rabe vy, Cole, SAT B. Wg GiB cc cece ccc seevesecsescnesiess 2

Louisville, ete.. Co. ve Woodward, 90 C, CL. AL, A792 176 Fed. 5. 1S

Midland Valley, ete.. Co. v. Fulgham, 14 @.) @. A. 1512 181

4. Se Per ee Pe KOe ST ew bees OS 2

Miller v. Canadian, ete., Co., 281 Fed., G64. .... 0... cc eee eee eee S, 1S

Missouri, etc., Co. v. Riddle, 277 S. W., 160... ... cece ccceees a)

New York, ete., Co. v. MeDougall, 15 Fed. (2d), 2S3........6- 50

Northern, ete., Co. ve Freeman, 174 U.S. OTD... ee eee eee 8,22

Parramore v. Denver, ete., Co. 5 Fed. (2d), 912.2... eee ee eee %, 24

Payne v. Blevins, 280 Fed. S10... 0... 66.2 eee eee eee eet oo BRA

Pheasant v. Director General, 285 Fed. 3b. ... 6.6.0. eee eee 8,17, 28

Pryor v. Williams, 254 U.S.) 432.8... 272 Mo. G1... ee eee 10,37

Rollins v. Chicago, ete., Co. 77 C. GC. A. 615; 139 Fed. 680.0... 9.25

St. Louis, etc.,, Co. v. Mills, 271 WU. S., B44... cee eee eee nes 26

Soccorso Vv. Philadelphia, ete., Co. 116 Fed. 378. 8. C., 170

Ma ee er Teer rrr reer re Tee eee Tere ee ee Is

Southern, ete. Co. v. Berkshire, 254 U. S., 495. ..0.... 0. cee eee , 29

Srowart ©. Boal, BOP HB. W.. TAG. osc csesccsceseseccvessvcees a

Texas Statutes, Compilation of 1920, Article Th01......... 6. 15

Texas Statutes, Compilation of 1920, Article loz... ee... eee 7

Tomlinson v. Chicago, ete., Co., 67 C. C. A. 217; 134 Fed. 233..0 9,25

Trochta v. Missouri, ete., Co., 218 8S. W., 108828. C., ISLS. W.,

WOE wescsss errs Tt VAL SARS SESE TV EOOSS DEAS ey eer

Wichita, ete., Co. v. Lechner, 276 S. W., 216....... ateene een

EEE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1927.

No. 349

THE KANSAS CITY SOUTHERN RAILWAY

COMPANY, Pevirioner,

FRANKLIN JONES, Apmenistraron or tur Estare

or D. R. Fercusox, Deceasep, Responpenr.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF TEXAS.

Your petitioner, The Kansas City Southern Railway

Company, respectfully petitions this Court to erant a

writ of certiorari to the Supreme Court of Texas. and

to remove therefrom to this Court for review the rec-

ord of the case therein lately pending, of Franklin

Jones, Administrator of the Estate of D. R. Ferguson,

deceased, plaintiff in error, ¢. The Kansas City South-

ern Railway Company, defendant in error, being case

No, 762-4730 on the docket of that court) (Franklin

Jones, Admr., ¢. Kansas City Southern Railway Com-

pany, 291 S. W., 528). A certified copy of the record

therein is presented herewith.

Review by writ of certiorari is prayed for on the

ground that your petitioner specially set up and

claimed throughout in this cause rights and immunities

under the Federal Employers’ Liability Act, to-wit:

(1) of the lack of any negligence on the part of peti-

tioner proximaiely causing the death of decedent:

(2) of the negligence of the deceased at the time of

the injury, which wholly or partly resulted in his death:

and (3) of asstmed risk (see Kansas City Southern

Railway Company c. Jnes, 282 S. W., 312, Ree. 186,

ISS); which rights and immunities were denied your

petitioner by the Supreme Court of Texas in that said

count on toowil: hebruary 25, 17 (Ree. S26, 2s),

reversed the judgment of the Court of Civil Appeals

of the Sixth Supreme Judicial Distriet of Texas, which

had reversed a judgment for $13,000 aeainst your

petitioner rendered by the Distriet Court of Bowie

County, Tex., and affirmed said judement of the dis-

trict court, and on, to-wit, April 20, 1927, overruled

your petitioner’s motion for a rehearing (Ree. 252).

In the judgment of said Supreme Court of Texas

(which is the court of last resort in Texas), in this

cause, said Supreme Court of Texas failed to decide the

same in accordance with the applicable principles of

law as the same had been determined by the Federal

courts, but, on the coutrary, applied interpretations of

such principles of law which were in conflict with the

decisions of the Federal courts.

Respondent's action is based on the Federal km

ployers® Liability Act (Ree., 1,2), and your petitioner

asserted in said cause in the district court (Ree. 8

ef seq.), and throughout the cause the defenses of eon-

tributory negligence and assumption of risk, as found

by said court of appeals (Ree. 181).

For the sake of brevity the respoudent will herein

after he designated as the **plaintiff"" your petitioner

as the **defendant,”* and D. R. Ferguson as the ‘de

cedent.”’

Decedent being then employed as a car inspector in

defendant's service, in assisting in making up, on de

fendant’s passing track, a northbound train carrying

freight in interstate commerce (Ree. 87), was killed,

presumably by a northbound passenger train on de-

fendant’s main line track.

Plaintiff (or his predecessor as administrator), sued

defendant, an interstate carrier, in the Distriet Court

of Bowie County, Tex., to recover damages, under the

Federal Employers’ Liability Act, for the death of de-

cedent, D. R. Ferguson, an employee of defendant,

plaintiff contending that his death was due to his be

ing struck by defendant's passenger train neglivently

operated, On, to-wit, November Yo, 1924 (Ree. OO). a

jury returned a special verdiet tinding defendant

guilty of negligence in failing to give warnine of the

approaching train by bell or whistle, in running the

train at an unusually rapid rate of speed, and in fail

ing to dim the headlight on the engine, and that the

light ‘‘caused the said D. R. Ferguson to be blinded”

(Rec., 38). The jury also found that Ferguson was

not negligent, and that his children were damaged by

his death in the sum of $13,000, on which verdict judg-

ment was thereupon entered against defendant for

that sum (Ree. 37). Defendant duly filed its motion

for a new trial (Ree., 41), which was overruled (Ree.,

96). It duly appealed from said judgement (Ree., 58)

to the Court of Civil Appeals of the Sixth Supreme

Judicial District of Texas (hereinafter called the

court of appeals), the court having appellate jurisdie-

tion in said cause (Article 1591, Compiled Statutes of

Texas, 1920). Said court of appeals found that none

of the alleged negligent acts or omissions of the de-

fendant were the efficient cause of the death of de-

cedent, except the alleged failure to ring the engine

bell on the approaching passenger train, the court

finding that there was evidence that the engine bells

were customarily rung on defendant's trains going

through Leesville, and that the bell on this engine was

not rung. The court further found, however, that de-

cedent was guilty of negligence proximately contribut-

ing to his death in that he knew when he assumed his

position near the main line track that the passenger

train was likely to pass (Ree., IST7-188); that le had no

duties to perform at that time on the main line track

(Rec., 188); that the rattle and rear of the approach-

ing train were plainly audible (Ree., 188); that the

evening (Sunday) was quict (Ree., 185); that the track

was straight (Ree., 184) (this straight track extend-

ing over a mile (Ree., 79, 91, 129, 131); that the en-

”

gine’s headlight cast a bright light 700 or 800 feet

ahead (Ree. 190); that these facts gave decedent ample

opportunity to acquaint himself with the peril incident

to the situation which led to his being injured (Ree.,

190); that decedent was 62 vears old, with 12 vears*

experience in this vard (Ree. ISt); that ‘there is

really nothing to explain such conduct or excuse the

failure to use due care to leave the position of peril

incident to the situation near the main line. He could

not have been ina better position to hear the approach

ing train’’ or see the approaching light (Ree. 184,

190). Phe court therefore held that as decedent was

guilty of contributory negligence, the jury, in accord.

anee with the provisions of the Federal Employers’

Liability Act, should have taken this faet into con

sideration in fixing the amount of damages, and as it

had found decedent was not negligent and therefore

had not taken such negligence into consideration, the

‘ase must be reversed and remanded. The essential

facts upon which the court of appeals made its tind-

ing that decedent was guilty of negligence proxi

mately contributing to his death are not in dispute.

It also appears that under the statutes of Texas, ‘tthe

judgments of the courts of appeal shail be conclusive

on the law and the fact’ (Complete Texas Statutes,

1920, Article 1591).

As we have already shown, the Supreme Court of

Texas reversed the judgment of the court of appeals,

and aflirmed the judgement of the distriet court, errone-

ously failing to apply, on the facts thus found by the

court of appeals, in a case arising under a Federal

statute, the rule established by the Federal courts,

that decedent, on such facts, was negligent as a matter

of law, and erroneously applying the rule established

by the Texas courts, that on the facts as stated by the

court of appeals the question of whether or not de-

cedent was negligent was a question of fact for the

jury. This ruling of the Supreme Court of Texas

presents the principal question involved in this case,

After the original decision of said court of appeals,

reversing said judgement of said District Court. of

Bowie County, a motion for a rehearing was filed

(Ree, 195). On the rehearing the court of appeals

reversed its original decision, on to wit: March 18,

1926 (Ree. 237), and held that the question of de-

cedent’s contributory negligence was one for the jury

(Ree. 259-240), although, it is said, ‘tin view of the

rattling noise of the train and the glare of the head-

light on the engine, in connection with the fact that

deceased knew that the train was about due, it is diffi-

cult to impute to him utter ignorance of the approach-

ing train.’ The court failed to rule that the finding

of the jury that the glare of the headlight had ** blinded

decedent" was a finding that he actually knew of the

approach of the train.

Thereafter defendant filed another motion for a

rehearing (Ree., 241), and on that rehearing the court,

in a majority opinion, on to wit: June 24, 1926, held

(Ree., 244 ef seq.) that *tafter an extended considera

tion of the record, it is believed by a majority of this

Court that the original disposition of this case should

be adhered to’? (Kansas City Southern Railway Co,

v. Jones, 287 S. W., S04).

Thereafter plaintiff filed another motion for a re-

hearing (Ree., 249), and on to wit: October 7, 1926

(Ree., 275), the court overruled said motion (Kansas

City Southern Railway Co. v. Jones, Administrator

287 S. W., 304).

Thereafter said cause was taken by plaintiff on writ

of error (Ree., 275 ef seq.), to the Supreme Court of

Texas, which court then had jurisdiction of said cause

(Article 1521, Compiled Texas Statutes, 1920), Sania

Supreme Court, on, to wit: Kebruary 25, 1927 (Ree.,

3D et seq), as above indicated, reversed the jude

ment of the court of appeals, on the ground (Ree.,

$26) that the trial court had tound that the eonduet

of the decedent was not negligent, and that the court

of appeals, through its majority, therefore erred in

holding that it was. The supreme court thereapon

affirmed the judgment of the distriet court (Jones vr.

Kansas City Southern Railway Co., 291 8, W., 528).

In due time defendant, your petitioner, filed in said

Supreme Court its motion for a rehearine (Ree, 229),

Which motion was by said court denied on to wit: April

20, 1927 (Ree. 352): and your petitioner now makes

application to this Court for a writ of certiorari to

the Supreme Court of Texas. Your petitioner further

says that by consent of counsel for said respondent the

mandate in said cause is to be stayed until your peti-

tioner can make application for this writ of certiorari,

Your petitioner respectfully says that the Supreme

Court of Texas was in error in reversing the holding

eee —a

eee

Pet RBS, “ty

gerne a

of the court of appeals that the negligence of D. R.

Merguson was a proximate cause of his own death, and

in affirming the judgment of the distriet court, and in

not reversing the same.

Errors of the Supreme Court of Texas.

Your petitioner respectfully states that in the judg-

ment and decision of the Supreme Court of Texas,

upon the questions involved and hereinbefore referred

to, petitioner was denied rights and immunities claimed

by it under the Federal Employers’ Liability Act,

through certain rulings which are erroneous and in

conflict with the decisions of this Court, and with the

decisions of other courts of the United States, in the

following particulars, to wit:

1. The Supreme Court of Texas. in a case governed

by the Federal Employers’ Liability Act, erred in fail-

ing to hold that D. R. Ferguson was suilty of neeli-

gence directly contributing to his death. (Frese r,

Chicago, ete. Co., 263 U.S. 1; Chesapeake, ete. Co. r,

Nixon, 271 U.S. BIS: Blunt +. Pennsylvania, ete. Co.

9 Red. (2d) 395; Nerkfetz vr. Humphreys, 145 U.S. 418:

Illiott 7. Chicago, ete. Co. 150 UL S, 245: rie, ete. Co.

vr Kane, 55 C. CL A. 129, 118 Fed. 225, 2h4: Pheasant v.

Director General, 285 Fed. 342: Frazier r. Interstate,

ete, Co, 275 Ped. IST (certiorari denied, 256 ULS, 703);

Miller ¢. Canadian, ete. Co., 281 ed. 664; Chicago,

ete, Co. ve. Houston, 95 U.S. 697; Northern, ete Co. v,

Freeman, 174 UL S., 379; Dernberger vr, Baltimore, ete.

Co, 155 CLC. A, 551, 243 Fed., 21; Payne v. Blevins,

280 Fed., 310; Atchison, ete. Co. vr. MeNulty, 285 Fed.,

97 (certiorari denied, 262 UL S., ae: Bradley v. Mis.

souri, ete. Co., 288 Fed., 484: Bush vv. Baltimore, ete.

Co., 288 Fed., 845; Parramore vr. Denver, ete. Co. 5

Red. (2d), 912, 915; Atlantie, ete. Co. +. MeLeod, 11

Fed. (2d), 22; Allen v. New York, ete. Co., 98 C. C. '

233, -_ Med., 774; Lonisville, ete. Co. vr. Woodward,

99 CL OL AL, 479, 176 Ped, 5; Garlich +. Northern Pac.

Ry. Co. 67 CLC. A. 237, 137 Fed., 837, 841: Chic: wo,

ete, Corr, Andrews, 64. C. CL AL, 399, 130 Fed., 65: 'Tom-

linson +. Chicago, ete. Co., 67 CLC. A. 297, 14 Med.,

255, and Rollins «. Chicago, ete. Co., 71 CL. A., 613,

139 Fed., 639.)

The Supreme Court of Texas, in a case governed

by the Federal Employers’ Liability Aet, erred in fail-

ing to hold that D. Ro Ferguson was guilty of neeli-

genee Which was the sole proximate cause of his death.

(Distriet of Columbia r+. Moulton, 182 U. S., 576, S81:

Craine vr. Metropolitan, ete. Co., 246 Mo., 393; Gold-

berg vr, Chesapeake, ete. Co., 211 Ky., 115.)

The Supreme Court of Texas, in a ease governed

by the Federal Employers’ Liability Aet, erred in fail-

ing to hold that the death of D. R. Ferguson was the

result of risks assumed by him, (Chesapeake, ete.

Co. rv. Nixon, 271 ULS., 218; Southern, ete Co. vr. Berk-

shire, 254 U. S.. 413; Atehison, ete. Co., vr. Weyer, 8

Fed. (2d), 30; New York, ete. Co. v. McDougall,

Red. (2d), 283.)

4. The Supreme Court of Texas, in a case governed

by the Federal Employers’ Liability Act, erred in fail-

ing to reverse outright the judgement of the District

Court of Bowie County, Texas. (See the authorities

hereimbefore cited.)

». The Supreme Court of Texas, in a case governed

by the Federal Kmployvers’ Liability Act, erred in re-

versing the judgment of the Court of Civil Appeals of

the Sixth Supreme Judicial District of Texas. (See

the authorities hereinbefore cited. )

6. The Supreme Court of Texas, in a case governed

by the Federal Employers’ Liability Act, erred in fail-

ing to follow the rules of law established by the Fed-

eral courts ino construing the Federal) Kmployers’

Liability Act. (Chicago, ete., Ry. Co. vr. Coogan, 271

U.S., 472; Pryor +. Williams, 254 U.S., 43.)

Your petitioner respectfully shows that the ques-

tion of liability in this cause is governed by the stat-

utes of the United States, and the deeisions of this

Court and other United States courts construing the

same, and that the decision of the Supreme Court of

Texas is in confliet with the decisions of this Honor-

able Court and with the decisions of other Federal

courts, and that said decision of said Supreme Court

of Texas should be corrected by this Honorable Court,

inorder that the same may conform with settled juris-

prudence as fixed and established from time to time by

this Honorable Court and other United States courts,

all of which is fully set forth in the brief and argu-

ment in support hereof, which is attached hereto and

filed herewith.

oo , —_

WHEREFORE your petitioner prays that a writ of

certiorari be issued under the seal of this Honor

able Court, directed to the said Supreme Court of the

State of Texas, sitting at Austin, Texas, commanding

the said court to certify and send to this Court, on 2

day to be designated, a full and complete transcript

of the record of the proceedings of said Supreme Court

had in this cause, to the end that the said cause mas

be reviewed and determined by this Honorable Court,

as provided by law, and that said judgement of the said

Supreme Court of the State of Texas be reviewed by

this Honorable Court, and for such other relief as may

seem proper, and for all of which vour petitionc: wil!

ever pray.

PRANK TH. MOORK,

J.J. KING,

J.Q. MEHAFEFEY,

A. F. SMITH,

Attorneys for Petitioner,

State or Texas,

County of Bowie, ss:

Frank H. Moore, being duly sworn, on his oath de

poses and says that he is general solicitor for the Kan-

sas City Southern Railway Company, the petitioner:

that he assisted in preparing the foregoing petition,

and that the allegations thereof are true, as he verily

believes.

FRANK H. MOORE.

Subscribed and sworn before me this 18th day of

June, 1927.

My commission expires October 21, 1928,

[ SEAL. | CLARENCE R. HALL,

Notary Public in and for said

County and State.

BRIEF OF PETITIONER IN SUPPORT OF ITS

APPLICATION FOR WRIT OF CERTIORARI.

Petitioner (herein called the defendant) is praying

for a writ of certiorari of the decision and judgment

of the Supreme Court of Texas, made and rendered on,

to wit, February 28, 1927 (Ree., 326, 328), and made

final on its overruling defendant's motion for a re-

hearing on to wit, April 26, 1927 (Ree., 352). Said

decision is not officially reported, but is unofficially re-

ported (Franklin Jones, Admr., 7. Kansas City South-

ern Railway Company, 291 S. W., 528).

The case is governed by the Federal Employers’ Lia-

bility Act, and the Supreme Court of Texas, in passing

on the questions of whether or not the death of D. R.

Ferguson, for whose death this action was instituted,

was caused or contributed to by his own negligence,

or was the result of a risk assumed by him, errone-

ously refused to apply the interpretations of the law

governing said questions as established by the Federal

courts, but applied interpretations that were in con-

fliet with the decisions of the Federal courts. Said

questions were raised by pleadings (Ree., 8 ef seq.),

demurrers to the evidence (Ree., 23), by issues sub

mitted to the jury (Ree., 39 ef seq.), and on appeal

(Ree., 188).

in BAN A is a

The Supreme Court of Texas, in its rulings, erred in

the following particulars:

The Supreme Court of Texas, in a case governed by

the Federal Employers’ Liability Act, erred in failing

to hold that D. R. Ferguson was guilty of negligence

directly contributing to his death.

The faets in this case are not at all complicated.

The decedent was presumably struck by a passenger

train running on a track upon which his duties did not

eall him. This track was straight for over a mile south

of the place where he was struck; the engine pulling

the passenger train was equipped with a strong head-

light, making it plainly visible during all of the mile or

more that it traveled before it reached decedent, and

it was making noise enough to be plainly audible to

him, whether or not its bell was rung or its whistle

sounded. Decedent knew the time when this train was

due, and it was coming in on time. His daughter testi-

fied that, though no whistle was sounded nor bell rung,

she heard the train coming out of Staples and all the

way into Leesville, Staples being ever a mile away

(Ree., 78). There was no evidence that decedent was

engrossed in any work at the time he was struck.

When last seen alive he was apparently waiting for

further work to be brought to him. There was no evi-

dence that there was anything to distract his attention,

or that there was anything to prevent his hearing the

train or seeing it. The only explanation of decedent’s

permitting himself to be struck by the passenger train

is that he put himself in a place of danger without giv-

ing any heed or thought to the approach of the train,

which was plainly audible, visible, and to be expected

at that time. Indeed, the jury found that the train's

headlight ** blinded’? decedent, and therefore the pres-

ence of the train must have been actually known to

him.

Men working in railroad yards must be vigilant for

their own protection and are responsible for the con-

sequences of their own neglect.

In Aerkfetz ¢. Humphreys, 145 U.S., 418: 36 L. bd.,

fos, it was held that a repairer of tracks, employed in

a railroad yard which was used for the making up of

trains, and who was familiar with the manner in which

the work was done, and who, knowing that the switch

engine Was busy moving cars and making up trains,

placed himself with his face away from the direction

from which cars were to be expected, and continued

his work without ever looking back, although there

Was no obstruction to his vision, and by ordinary at-

tention he could have observed the approaching cars,

and while so employed was struck and injured by the

switch engine moving slowly, was guilty of contribu-

tory negligence, which prevented his reeovery from

the railroad company (for his injury). The Court

said: ** The plaintiff, by this negligent inattention, con-

tributed directly to the injury.”’

aks Swit

RO HEF

ORIN OURO 8

In Frese vr. Chicago, ete., Co., 290 Mo., 501; 235 S. W.,

7, an engineer of a Burlington train was killed as the

result of a collision with a Wabash train at a railroad

crossing in Illinois, An Illinois statute required all

trains to stop at such crossings, and that ‘the engineer

or other person in charge of the engine attached to the

train shall positively ascertain that the way is clear,

and that the train ean safely resume iis course before

proceeding to pass the * * "crossing." The Su

preme Court of Missouri held that the engineer was

responsible for his own death, even though there may

have been a custom or usage in force upon the engine

in question whereby it became the duty of the fireman

to look out for approaching trains on his side of the

train, and to notify the engineer in case he saw an

engine approaching the crossing over whieh they were

to cross, This judgment was affirmed on writ of cer:

liorari to the Federal Supreme Court (263 U.S. ls

4458. C) R., 1), the Court saying:

“The statute makes it the personal duty of

the engineer positively to ascertain that. the

train can safely resume its course. Whatever

may have been the practice, he could not escape

this duty, and it would be a perversion of the

Employers’ Liability Act to hold that he could

recover for an injury primarily due to his fail-

ure to act as required, on the ground that pos-

sibly the injury might have been prevented if

his subordinate had done more.”

In Chesapeake, ete., Ry. Co. vr. Nixon, 271 UL S., 218,

219, 220; 46S. C. R., 495, 496, this Court said:

“Tf the accident had happened an hour later,

when the deceased was inspecting the track, we

think that there is no doubt that he would be

held to have assumed the risk, and to ave un-

derstood, as he instructed his men, that he must

rely upou his own watelfulness and keep out of

the way. The Railroad Company was entitled

to expect that self-protection from its employees.

Aerkfetz ¢. Humphreys, 145 U, S., 418; 12.8,

Ct, 885; 96 L. Md, 798; Boldt +. Pennsylvania

R. R. Co. 245 UL S., 441, 445, 446; 38S. Ct, 139;

62 L. Kd. 385; Connelley rc. Pennsylvania R.

Co., 201 F., 54; 119 C. C. A. 302; 47 L. R. A.

(N.S.), 867; Davis rv. Philadelphia & R. Ry. Co,

(D. C.), 276 FL, 187; Pennsylvania R. R. Co, vr.

Wachter, 60 Ma. 395; 4 Elliott on Railroads

(Sd Ed.), See. 1862. The duty of the railroad

company toward this class of employees was

not affected by that which it might owe to

others."’

The same rule was applied by Federal courts of ap-

peals in the following cases:

Pheasant ¢. Director General, 285 Fed., 342.

Frazier vr. Interstate R. Co., 273 Fed., 181 (cer-

tiorari denied, 256 U.S. 708).

Dishon vr. Cincinnati, ete., Co., 66 C. C. A. 345;

133 Fed., 471.

Allen v. New York, ete., Co., 98 C. C. A., 253;

174 Fed., 779.

gee re

a hon 2

a ee oe

OR ee me ee ee

Louisville, ete., Co. 7. Woodward, 99 C. C. A,

479; 176 Fed, 5.

Miller ¢. Canadian, ete., Co., 281 Fed., 664.

See also, Soecorso ¢. Philadelphia, ete., Co., 166

Fed., 378; S. C., 170 Fed., 722 (D. C.).

The failure (if any) of the defendant to follow its

custom (if any) to have the engine bell ringing on the

train by which the decedent was struck did not excuse

decedent's failure to observe the approach of defend-

ant’s passenger train.

Even if defendant's trains customarily rang their

engine bells in coming into Leesville, and it failed to

ring the bell on this train, and this failure was a breach

of a duty it owed decedent, that did not excuse de-

cedent’s failure to diseover the approaching train.

- The giving of warning signals is merely an additional

precaution to warn parties of the approach of trains

lest they fail in their duty to use proper diligence. In

other words, it is a double precaution to assist the non-

Vigilant in case they are lax in their duty to protect

themselves. The enginemen’s duty to warn the plain-

tiff is no greater than is the plaintiff's duty to look out

for himself. In each case the duty is to be performed

by a human being, and it would be an anomalous situa-

tion to say that where a railroad company calls upon

one employee to assist another in protecting himself,

it thereby takes from the employee to be protected all

responsibility for his own protection,

In Jacobs vr. Atchison, ete., Co., 97 Kan., 247; 154

Pae., 1023, plaintiff sued for the death ef her husband,

killed by a railroad train at a grade crossing. Sle con

tended that an electrical warning bell failed to operate

and that her husband had a right to rely on this bell

and was exeused from looking or listening for the

train. The court, in that case, used language aptly

fitting this case:

“If the plaintiff's contention in this respect

is correct, a railroad increases its responsibility

and liability by putting in electric bells at high

way and street crossings. The object in putting

in electric bells is to promote public safety, not

to inerease railroad liability.”"

In a general way, the duty of a man working in a

railroad vard is governed by the principle which is

applicable to a highway traveler at a railway crossing.

Even where railway companies are required by statute

to give certain warning signals in approaching high-

way crossings, the courts hold that a highway traveler

may not rely entirely on the compliance with these

statutes, but that he must use due vigilance to look

out for trains, and if he fails to use such vigilance the

railway company is not liable even though it fails to

give the signals required by law. There is this differ-

ence between the highway traveler and the railroad

workman: The railroad workman's experience teaches

constant vigilance. He is required to be keenly ob

servant, to look out for himself, and he is trained in the

exercise of that vigilance. This Court and other Fed-

POW

DOP PK FOr =, SP POP Tera ee

4 aah bl

eral courts have applied to railroad workmen tae rule

applicable to lighway travelers at railroad crossings.

In Elliott «. Chicage, ete., Co. 1d0 UL S., 245; 37

L.. Id., 1068, the foreman of a section wane was struck

by some cars moving ina “flying switeh.’’ A verdict

was directed for the defendant, which was affirmed by

the Supreme Court. ‘'It thus appears that the de-

ceased, an experienced railroad man, ona bright morn

ing and with nothing to obstruct his vision, starts along

and across a railroad track with which he was entirely

familiar, with cars approaching and only 25 or 30 feet

away, and before he gets across the track is overtaken

by those cars and killed. But one explanation of his

conduct is possible, and that is he went upon the track

Without ooking to see that any train was coming. Such

omission has been again and again, both as to travelers

on the highway and employees on the road, aftirmed to

be negligent. The track itself, as it seems necessary to

iterate and reiterate, is itself a warning. Tt is a place

of danger. It can never be assumed that ears are not

approaching on the track, or that there is no danger

therefrom.’’ (AIL italies in this brief, unless other-

wise indicated, are ours.)

In Erie R. Co. vr. Kane, 55 Co CL AL, TO: TIS: Fed.

293, 234, a fireman ona switeh engine was killed as the

result of a collision between his engine and another

switch engine. At the time of the collision he was

standing on the front of the engine engaged in clean

ing the number on the engine. Tt was a part of his

duties to do this work, but not while the engine was

moving.

aw . ress sano nee a te ones rr |

“Counsel for defendant in error urged that

it was not negligence for decedent to be there

because he was not bound to anticipate Bowker’s

negligence, through which the collision came

about. It is never negligence, they say, for one

not to anticipate negligence ino anybody else.

There is, however, no such general rule of law

or prudent conduct. There are instances where, :

as ao matter of law, it is negligence not to an- j

ticipate negligence in others. As, for instance,

it is well settled in the Federal Courts that if cs

neghagence for a highway traveler nol to an ‘

fierpate failure ou part of an engineer to qive

appropriate signals of approach of his train to

a highway crossing, We has no right not to

look or listen because he has heard no sueh sig

nals. Mr. Justice Mield, in the ease of Railroad

Co. v. Houston, 95 U. S., 697; 24 L. Ed. 542,

said:

“The failure of the engineer to sound the

whistle or ring the bell, if sueh were the facet,

did not relieve the deceased from the necessity

of taking ordinary precaution for her safety.

Negligence in the company’s employees in these

particulars was no excuse for negligence on her

part. She was bound to listen or look before

attempting to cross the railroad track, in order

to avoid an approaching train, and not to walk

carelessly into a place of danger.’ "’

The rule established in the Tlouston ease was thus

stated ina head note written by Mar. Justice Field for

this Court:

“The negleet of the engineer of a locomotive

of a railroad train, to sound its whistle or ring

its bell on approaching a street-crossing does

not relieve a party from the necessity of taking

ordinary precautions for his safety. Tle) is

hound to use his senses—to listen and to look —

before attempting to evoss the railroad track, in

order to avoid any possible accident from an

approaching train. If he omit to use them, and

walk thoughtlessly upon the track, he is guilty

of culpable negligence; and if he receive any

injury, he so far contributes to it as to deprive

him of any right to complain. Tf, using them,

he sees the train coming and undertakes to cross

the track instead of waiting for the train to pass,

and is injured, the consequences of his mistake

and temerity cannot be east upon the railroad

company. Tf one chooses in such a position to

take risks, he must bear the possible conse-

quences of failure’? (Chicago, ete. Co. ¢.

Houston, 95 UL S., 697; 24 L. Md., 542, 545.)

In Northern Pacifie R. (Co. er. Freeman, 174 U.S.

370: 43 L. Kd., 1014 (a crossing ease), it was held

that where a person approaching a railroad crossing

well known to him, when a coming train was in full

view and he could have seen it while 40 feet distant

from the track if he had used his senses, but did not

look, or took the chance of crossing the track before

the train reached him, and was killed, he was guilty of

contributory negligence, and could not recover, even

if the railroad company failed to give proper warning.

In its opinion the court said:

“The duty ef ia person approaching a rail

road crossing, Whether driving or on foot, to

look and listen before crossing the track is so

elementary, and has been aflirmed so many

times by this Court that a mere reference to

the cases * * * is a sufficient illustration

of the general rule.’

In Garlich v. Northern Pac. Ry. Co., 67 C. CL. A,,

257; 151 Fed., 837, 841, the court said: t

“The well-settled rule of law is that no re- 4

liance upon the exercise of care by a railroad :

company will excuse a lack of the exercise of b

proper care by a person going upon a railroad &

track, or so near as to be in danger from passing 3

trains.”’ 3

See, also, Chicago, ete., Co. c. Andrews, 64 CL ©. 3

, ‘ ’ , . §

A. 399, 180) Fed. 65; Tomlinson ¢. Chicago, ete. Ry. §:

sqeery

Co. 67 CL CL AL 217, 184 Red. 255; and Rollins ¢.

Chicago, ete., Co. TLE CL CL AL 615, 189 Red. 639, the

opinion in all of these four cases having been written

or coneurred in by Mr. Justice Van Devanter, then

Cireuit Judge,

In Bradley ¢. Missouri Paeifie R. Co., 288 Fed. 484,

it was held that a guest in an automobile was guilty

PIS LOT PPLE IE

of negligence as a matter of law in failing to look out

for an approaching train which could have been seen

and heard if reasonable care had been used to dis-

cover said train. There was testimony of witnesses

that they did not hear any bell rung or whistle blown.

“Tt is noteworthy in the evidence of plain-

tiff’s witnesses that a number of them, who did

| The court said: .

| not hear the bell ring nor the whistle blow,

heard the rumbling and noise of the train be-

fore they saw it. © * * Why Brown and

Bradley, under these circumstances, did not

hear it, when nearly everyone else in the viein-

ity seems to have heard it, can only be conjee-

tured. If they could not see the train, it: was

their duty to listen. If they could not hear be-

‘“ause of the noise of the automobile, it was their

duty to stop.”? (The verdict in this case was

for the defendant in the District Court, and the

judgment was affirmed on appeal although,

under the statutes of Arkansas, the question of

contributory negligence was for the jury, and

contributory negligence could diminish, but not

bar, a finding for the plaintiff.)

The same rule was applied by Federal courts of ap-

peals in the following cases:

Dernberger v. Baltimore, ete. Ry. Co., 160 C.

C. A., 51; 243 Fed., 21.

Payne v. Blevens, 280 Fed. 310,

Atchison, ete., Co. oe. MeNulty, 285 Fed., 97

(certiorari denied, 262 U.S., 746).

Bush v. Baltimore, ete., Co., 288 Fed., 845.

Parramore rv. Denver, ete., Co., 5 Fed. (2d),

912, 915.

Atlantic, ete., R. Co. vc. MeLeod, 11 Fed. (2d),

ss)

-J

11.

The Supreme Court of Texas, in a case governed by

the Federal Employers’ Liability Act, erred in failing

to hold that D. R. Ferguson was guilty of negligence

which was the sole proximate cause of his death.

The jury found on special issues, 6, 7, and 8, that

defendant's servants in charge of its passenger train

failed to ring the bell ou the engine of that train as it

approached the place where said D. R. Ferguson was

struck: that such failure was negligence, and that it

Was a proximate cause of his death (Ree. 37-38). The

jury, however, also found on special issues 1 and 2

(Ree, 87-58), that the fathire of defendant's servants

in charge of its passenger train to dim the headlight

of the engine of said train as it approached the place

where D. Ro Ferguson was struck was negligence, and

that such failure tteaused the said D. R. Ferguson to

be blinded and thereby was a proximate cause of the

death of said D. R. Ferguson.’

It also appeared in evidence both on the part of the

plaintiff and of the defendant that the noise and roar

of defendant’s passenger train was plainly audible

long before it reached the place of the accident.

We earnestly insist that even if the engine bell had

heen silent, its silence was not a proximate cause of

the death of decedent. Tt cannot be seriously con-

tended that he was entitled to a particular kind of

Warning of the approach of the train, or to a particu-

GPR GIN NPE OD REE FROG RE NPT FE

lar kind of sound announcing such approach. There

is no reason why the decedent, if he had been in the

exercise of due care, could not have heard the noise

and roar of the train just as the other witnesses did,

and a finding that the ringing of the bell would have

given notice of the approach of the train to one who

failed to hear its rattle and roar is based on conjee-

ture and speculation, and such a finding is not. sufli-

cient to support a judgment. (Chicago, ete., Co. v.

Coogan, 271 U.S., 472.

In St. Louis, ete., Co. r. Mills, 271 U. S., 344, 347,

M48; 46 8S. CL R., 520, a railroad inspector was shot

to death by strikers on the back platform of a street-

‘ar on Which he was riding home from work accom-

panied by a guard provided by the railroad company.

It was contended that a railroad company was liable

for failing to furnish more than one guard. This

Court said that there was no ‘tevidenee from which

the jury might infer that defendant’s failure to pro-

Vide en additional guard or guards was a proximate

‘cause of decedent’s death. Whether one or more ad-

ditional guards would have prevented the killing is in

the highest degree speculative. * * *

state of facts the jury should not have been permitted

On such a

to conjecture what might have happened if an addi-

tional guard had been present.’ So, in this case, a

finding that if the bell on defendant’s engine had been

rung it would have warned decedent in time for him

to have gotten out of the way of the approaching train

is purely speculative in view of the fact that the noise

of the train loud enough for his daughter to hear it

Bt - . .

pas “ -

-i

a mile awsy, and the glare of the headlight which the

jury found that he saw, were not sufficient for that

purpose.

‘Conjecture is an unsound and unjust founda-

tion for a verdiet. Juries may not lawfully

guess the money or property of one litigant to

another.’ (Midland Valley R. Co. ¢. Fulgham,

14 AL DoT, IST Red. 91, 95.) ¢

When the jury found that the headlight on the pas ‘

senger train was not dimmed and that it blinded de é

cedent, it necessarily followed that he knew that a »

train was approaching. That fact would be self-evi

dent to the most inexperienced person, and certainly ;

must have been known to a railroad man familiar with

electric railroad headlights. The jury, having found

that decedent knew of the approach of the train be- ,

cause of the radiance of the headlight, a finding that i

the failure to ring the bell was necessary to warn him E|

of the approach of that train was an inconsistent f

finding. i

It goes without saving that one who has knowledge ;

of an approaching train cannot complain of the failure ;

of the operators of that train to give him notice of its

approach.

“We agree with the opinion of the supreme

judicial court of Maine in Lane vr. Lewiston, 91

Me, 292, 390 Ath 999, that where a steam roller

is allowed to remain upon a municipal highway

it is requisite that the municipality causing the

obstruction should give reasonable notice to the

traveling public of its presence, but that a view

ee ee ae

of the obstruction itself in time to avoid it with-

out injury amounts to notice. In other words,

as stated by the Maine court, ‘no one needs

notice of what he already knows,’ and ‘knowl.

edge of the danger is equivalent to prior no-

tice.’ (District of Columbia vr. Moulton, 182

U.S. 576, 581; 21S. C. R. 840, 842.

The sole purpose of warnings ‘tis to aequaint the

traveler with the danger, and, if he is possessed of

knowledge of the danger independently of such notice,

then the absence of notice, or his failure to see it if

given, would not affect his rights’? (Craine vr. Metro-

politan, ete., Street Ry. Co., 146 Mo., 393; 152 S. W,,

24).

‘The evidence clearly showed that those in

charge of the car saw the light from the train

in advance of its approach long before it struck

the car. They therefore did not need signals to

advise them of its approach.’’ (Goldberg r.

Chesapeake, ete. Ry. Co. 211 Ky. 115, 276

S. W. 1086.)

In Blunt v. Pennsylvania, ete., Co., 9 Fed. (2d), 895,

it was held that a crossing watchman who was struck

by a truck which was thrown against him by a train,

could not reeover, as his business was to warn the

driver of the truck of the approaching train, and his

failure so to do was the proximate cause of the injury,

even if the train was running too fast and failed to

give warning signals.

See, also, Pheasant vr. Director General, 285 Fed.

342.

Til.

The Supreme Court of Texas, in a case governed by

the Federal Employers’ Liability Act, erred in failing

to hold that the death of D. R. Ferguson was the result

of risks assumed by him.

D. Ro Fergusen was an experienced railroad man,

having worked in the vards in which he was killed for

ten vears. ‘The train by which it is presumed he was

killed was due at that point at that time, and he knew

it. While there was evidence of a breach of custom

that engine bells would ring in geing into Leesville, vet

the voise of the train and its headlight furnished just

as elfective warning of its approach as could the bell,

and especially to one who is trained to be on the look-

out for train and car movements, and who is aware that

the train is due at that particular time, The jury

found that he was blinded by the train's headlight, and

therefore he must have seen it. In such circumstances

the Supreme Court of ‘Texas should have ruled that the

death of D. Ro Ferguson was the result of risks as

sumed by him even if it were true that the bell on this

train was not ringing and that the defendant owed

Ferguson a duty te see that it did ring.

In Southern Paeifie R. Co. vr. Berkshire, 204 U.S.

413: 41S. CLR. 162, it was held that an engineer must

have known of the presenee of a mail crane near the

track, and that his death from contaet therewith was

a risk assumed by him,

‘*Linder had been upon this route for some

years, had passed over it many times and must

a arr QD

Se) ne Eee

SP PGRN. Rin ert oe

Oe Pry

ait)

. .

be presumed to have known of the crane

An experienced railroad man cannot be sup

posed to have been ignorant that such a pro-

jection threatened danger, and, knowing se

much, he assumed the risk that obviously would

attend taking the chances of leaning well out

from the train.”’

See, also, Chesapeake, ete., Ry. Co. rv. Nixon, 271

U._S., 218, hereinbefore quoted.

An employee assumes risks not ordinarily incident

to his employment, provided he knows of them and

appreciates the danger, or provided they are so plainly

observable that he must be presumed to know about

them and to appreciate the danger. Atchison, ete., Co.

r. Wyer, 8 Fed. (2d), 30

In New York, ete., Co. vr. MeDouwall, 15 Fed. (2d),

283, MeDougall, a brakeman, was injured by coming

in contact with a low bridge. It was held that his

injuries were the result of a risk assumed by him.

**'The case affords an illustration of what may

be assumption of risk without any contributory

negligence, or in addition to it."’

So far as concerns the failure to dim the headlight

on the passenger train, it was shown that it was the

universal practice for defendant’s passenger trains

going through the Leesville yards in the night-time

to keep the headlights on such trains undimmed. There

was evidence that this was the proper way to operate

such trains (Ree., 166, 169,171, 172,173). Whether or

not it was the proper way, it being defendant's prae

tice and decedent necessarily being familiar with that

practice, he assumed the risk of injury or death by

reason of such practice,

IV anv V.

The Supreme Court of Texas, in a case arising under

the Federal Employers’ Liability Act, and on the facts

in this case, erred in failing to reverse outright the

judgment of the District Court, and in reversing the

judgment of the Court of Appeals.

The judgment of the District Court in this case

should have been disapproved for several reasons;

1. The Supreme Court of Texas should have found,

on the facets, and under the authorities hereinbefore

cited, that the Court of Appeals correctly decided that

decedent ’s death was due in whole or in part to his

own negligence,

2. The Supreme Court should have found that there

had not been an acceptable adjudication that defend-

ant was guilty of negligence. It was established by

the great weight of the evidence that defendant's pas-

senger train came into Leesville at its usual speed

(Ree, 125, 123, 135); that proper whistle signals (Ree.,

125, 120, 81, 182, 135, 159, 169) and bell signals (Ree,

23. 10, 182, 149, 152, 154) were sounded. See, also,

opinion of the Court of Appeals, Ree. 184, 185). We

appreciate that there is a general rule that appellate

courts will not set aside verdicts merely because they

are against the weight of the evidence. But that rule

Poem le te

ought not to apply when, as here, it is judicially found

that the same jury has erred in its findings on other

material issues.

3. The Supreme Court should have disapproved of

the verdict of the jury because it contained self-con-

tradictory findings. The jury found in this ease, as

we have heretofore shown, that proper signals of the

approach of defendant’s train were not given, and at

the same time it found that the train’s headlight

‘blinded’? decedent. As the only purpose of the sig-

nals was to give notice of the train’s approach, and

decedent knew of that fact because its headlight

‘blinded’? him, the alleged failure to give the sig-

nals or the alleged too rapid running of the train was

not a proximate cause of the accident.

‘These findings of the jury being coutradie-

tory, it was the duty of the learned trial court

to set aside the findings of the jury and erant a

new trial, and the court’s failure to so do, and

his entry of judgment on such conflicting tind-

ings for defendant present error requiring a

reversal of this case.’’ (Stewart r. Schatf, Vey,

5 Civ. App., 269 S. W., 135, 137. See, also, Kahn

v. Cole, Tex. Civ. App., 227 8S. W., 556; Wichita,

ete., Co. v, Lechner, Com. of App. of ‘Tex., 276

Q S. W., 216, 217.)

5. gh

2 &

Pad

The finding by the jury that the headlight ‘*blinded”’

decedent was a finding against the plaintiff, because it

meant that decedent knew of the approach of the train,

and as the headlight was customarily not dimmed on

ER hoe oS Ae

defendant’s passenger train, that ‘‘blinding’’ was a

risk which decedent assumed.

VI.

The Supreme Court of Texas, in a case governed by

the Federal Employers’ Liability Act, erred in failing

to follow the rules of law established by the Federal

courts in construing the Federal Employers’ Liability

Act.

The reason for the decision of the Texas Supreme

Court in this case is that the rule of the Texas courts

in cases of this kind is entirely different from that

established by this Court and other Federal courts.

In the Federal courts if a person crossing or working

upon railroad tracks fails to look and listen for ap-

proaching trains, having a reasonable opportunity to

see or hear them, the court, as a general rule, finds

that his failure so to do is negligence. In the Texas

courts if a person crossing or working upon railroad

tracks fails to look or listen for approaching trains,

having a reasonable opportunity to see or hear them,

his failure so to do is, as a general rule, held to be

negligence only if it is found to be so by the jury.

We have hereinbefore cited a number of cases illus-

trating the rule of the Federal courts. The following

cases illustrate the Texas rule:

In Trochta v. Missouri, ete., Co., 218 8. W., 1038,

decedent was killed while driving a team and wagon

veross a railway track. Ele was familiar with the

crossing. ‘The train made mueh noise, was visible for

194 vards when he was 50 feet from the track, and

when 35 feet from the track he could see along the

track half a mile. The Court of Appeals (Missouri,

ete., Co. re. Trochta, IST S. W., 761) held he was negli-

gent as a matter of law, but it was reversed by the

Supreme Court of Texas, which said that ‘tthe failure

of one about to go over a public crossing to look and

listen for an approaching train, does not, of itself,

constitute negligence as a matter of law.’ (Trochta

vr. Missouri, ete., Co., 218 S. W., 1058, 1039, 1040.)

In Emberlin ¢. Wichita Falls, ete., Co., 267 S. W.,

463, a pedestrian stepped from a walk paralleling a

track at a station, in front of an approaching train,

and was struck by it. He could have seen it at any

point within 50 feet of the track. ‘The Court of Ap-

peals (Wichita Malls, ete, Co. er. Emberlin, 255 S. W.,

796) reversed the judgement because of plaintiff's con-

tributory negligence, and was itself reversed by the

Supreme Court, although the jury had found that de-

ceased had net looked to see whether a train was ap-

proaching before he attempted to step on the track,

and that he did not listen fora train as he approached

the track.

In Jones v. Louisiana, ete., Co., 245 S. W., 976, de-

cedent was killed by a railroad train on a crossing

Which was in an open, level prairie. When he came

within about 100 feet of the crossing there was noth-

ing to obstruct his view down the track for miles, ex-

cept the telegraph poles fifty feet away from and

parallel with the track, and the cattle guards near the

crossing. The Court of Appeals (Louisiana, ete., Co.

r Jones, 235 S. W865) had reversed sa judement

against the railway company, because ‘the undis-

puted fact taat the deceased in broad daylight drove

upon a railroad track in the open prairie in front of

a train of seven ears with nothing to obstruet the view

of the approaching train prima facie forbids the eon-

clusion that in so doing he was using ordinary care.’

The judgment of the court of appeals was reversed

by the Supreme Court on the ground that ‘tit is the

peculiar province of a jury, under our jurisprudence,

to determine what constitutes ordinary care under a

particular situation, or combination of cireumstanees.

In Freeman vr. Galveston, ete. Co. 285 S. W., 607,

plaintiff while driving an automobile was struek and

injured by a train at a grade crossing. The highway

ran north paralleling the track, and at a point 250

feet east of the track turned westward at almost right

angles. The crossing was on a prairie. There were

some obstructing bill boards close to and east of the

right of way, but after passing them there was no ob-

struction for 50 feet before reachine the track. The

jury found that plaintiff had not been enilty of nee

gence, and judgment was rendered for plaintitf. The

Court of Appeals (Galveston, ete. Co. re. Freeman,

200 S. OW. 979) first affirmed and then reversed. the

Judgment. The Supreme Court reversed the Judgment

of the court of appeals and affirmed the judement of

the district court.

In Missouri, ete., Co. r. Riddle, 277 S. W., 167, 168,

the court of appeals applied this same Texas rule to

SRR Beta he

CE LERNER THELEN HS AEBS

AE Sa ee

Sai ete

ae,

a case arising under the Federal Employers’ Liability

Act. J. A. Riddle was working in a bridge gang re-

pairing a bridge. The work not having been finished,

his foreman sent him out along the track to flag in-

coming trains. He flagged an approaching train when

it was 1,000 feet away from him, but while the engi-

neer reduced the speed of the train it was not stopped

before reaching Riddle, and he was struck and killed

by it. The jury found the train was run at a negli-

gent rate of speed, and that the engineer negligently

failed to stop it before reaching Riddle. A) verdict

and judgment in favor of his widow was affirmed by

the court of appeals, although, as stated by Judge

Stanford in his dissenting opinion, there was nothing

to prevent Riddle’s stepping from the track ino an

instant. Certainly no Federal court would ever hold

that under the facts in this Riddle case it was a ques-

tion of fact for the jury whether or not Riddle was

in the exercise of due care in permitting himself to be

struck by a train which he saw coming toward him.

In the light of these decisions it is hardly an exag-

geration to say that under the Texas rule practically

all crossing cases, and all cases where a railway em-

ployee is struck by a train, present a question for the

jury as to plaintiff’s contributory negligence.

It is also clear from an examination of these de

cisions of the Supreme Court of Texas that the rule

established by that court as to what facts constitute

contributory negligence is entirely different from the

rule established by this Court and other Federal courts

on similar facts.

As this action was brought under the Federal Em-

ployers’ Liability Act the rights and obligations of the

plaintiff and the defendant are to be governed by that

act, and by the rules established by this Court and

other Federal courts in construing the act.

“The rights and obligations of the petitioner :

depend upon that act and applicable principles i

of common law as interpreted by the Federal

courts, The employer is liable for injury or

death resulting in whole or in part from the

negligence specified in the act and proof of such

negligence is essential to recovery. The kind

or amount of evidence required to establish. it

is not subject to the control of the several States, :

This court will examine the record, and if it. is

found that, as a matter of law, the evidence is

;

hot sufficient to sustain a finding that the ear. :

riers negligence was a cause of the death. Judy. :

ment against the carrier will be reversed. St. 3

lL... Iron M. & S, rte r MeWhirter, 229 UL S

20, 277, 33 8. Ct. yoe dL. Md. 1179; New Or

leans & N. EL R. “a Ge. vr. Harris, 247 U. S.

367, 341, 38 S. Ct. — 62 L. Md. 1167: New

Orleans & N, IK. I. I. ;

ozo, 30 B. Ct. 369, 65 I

Chicago, ete. R

472, 46S. C. ]

ov. Searlet, 249 UL S

4s * ma. 702."

vy. Co. ¢. Coogan, 271 USS

a64.

In Williams ¢, Pryor, 272 Mo., 613, a ease arising

under the Federal Employers’ Liability Act, the de

fense was made that plaintiff's Injuries were the re

sult of risks assumed by him. The Supreme Court

of Missouri held that the defense of assumption of

risk was a common law defense and that it was ‘the

unbroken rule in’ Missouri that the servant never as

sumes the risk where sueh risk grows out of the negli-

gence of the master’? (621, 625). Aecordingly, a judg

ment for the plaintiff was affirmed. The case came to

this Court on writ of certiorari. This Court held that

in its view of the Federal statute and the defense

under it, ‘tthe Missouri court erred (citing authori

ties) and the requirement of the aet prevails over

any State law.’ (Pryor ¢. Williams, 2o4 UL S., 45,

41S. CLR. 36.)

From the foregoing authorities it is submitted that

the decision of the Supreme Court of 'Pexas is in con-

iet with and contrary to numerous decisions of this

Honorable Court, and in conflict with the decisions of

other Federal courts, and for that reason the writ of

certiorari should issue in order that the rulings on the

question arising under the Federal Mmplovers* Lia-

bility Aet may be uniform. The very uncertainty of

the appellate courts of Texas as to the law of this

case is a cogent reason why it should be reviewed here

by certiorari.

Inasmuch as the ease is one of great importance,

and inasmuch as the decision of the Supreme Court

of ‘Texas is in direct confliet with numerous decisions

—— BIB TREE ATG DAN AN His iat ‘ na oe PN AT MOE PY Ae RRB AE IE Uy Sel ei As Rew at ie hase nN =

39 i

of this Court, it is submitted that the writ of certiorari :

should be granted.

Respectfully submitted,

J.J. KING,

J.Q. MEHAFPEY,

A. F. SMITH,

Attorneys for Petitioner.

PRANK IL. MOORE, '

S. W. MOORE,

OF Counsel.

MN IPE ate

(6559)

ee & : ie a NER ght 98

" x. Apr grt. a

a a

AY “

a ;

No. 349.

In the Supreme Court of the United States

OCTOBER TERM, 1927.

THE KANSAS CITY SOUTHERN RAILWAY COM-

PANY, PETITIONER,

VS.

FRANKLIN JONES, ADMINISTRATOR OF THE

ISTATE OF D. R. FERGUSON, DECEASED,

RESPONDENT.

ADDITIONAL BRIEF OF PETITIONER.

Respondent’s Reply Brief to Petition for Cer-

tiorari contains a number of erroneous and misleading

statements and assumptions; hence this additional briet.

Petitioner will be called herein the ‘‘defendant,’’ re-

spondent the ‘‘plaintiff,’’ and the deceased D. R.

Ferguson the ‘*decedent.’’

We have shown in our petition for writ of cer-

tiorari, and in our original brief herein, that decedent

Was a car inspector killed in defendant’s vards at Lees-

ville, Lonisiava, probably by a passenger train of the

defendant, which approached the place of the aeci-

(eo

RE Et IEEE COREE

St ee

dent on a track which was straight for over a mile,

uml upon which the duties of decedent did not call

him, the train coming in on time, its engine equipped

with a bright headlight, which the jury found he saw,

and the train making considerable noise. which others

mueh further away plainly heard. We contend in our

petition and in our original brief that the Texas Court |

of Appeals was correct in its holding that decedent

was negligent in failing to observe and keep out of the

Way of said passenger train, and that the Texas Sn-

preme Court erred in reversing the court of appeals.

In his endeavor to answer this contention plaintiff

makes a number of erroneous inferences and assump-

tions, of which the following are examples :

1. Plaintiff says in his brief (Brief, 3) that after

the death of decedent it was found that the air had

heen coupled on the south 15 cars in the freight train

which was being made up on the passing track, but

the air had not been coupled on those north of these

1) cars, thus erroneously implying that there were then

in the train cars which had not been inspected or |

coupled. Plaintiff also says that there was a free |

space of only 4 or 5 feet between a train on the

passing track and a train on the main line, and that an

inspector would ‘frequently, if not usually, get near

enough to the main line to be struck by a passing

irain—a mere step, as there was barely room for one

'o stand in the clear’? (Brief, 2). From these er-

roneous statements plaintiff makes the repeated and

erroneous inference or presumption (for example pages

11, 16, 17 of his brief) that decedent's failure to see,

hear or heed the approaching passenger train was due

to his being engaged in the coupling of the air hose

and inspection of the cars north of the completed 15

ears, and to his being engrossed by such duties.

It appears from the testimony of R. T. Huson, a

eivil engineer of the defendant (Ree. 118, 119), and

the finding of the Texas Court of Appeals (Ree.

182, 183), that the place of the accident was about

1200 feet south of the Leesville station. The defend-

ant’s railroad seales were about 500 feet south of the

depot yard. The main line track between the Lees-

ville depot and Staples, the next station south, was

7.804 feet, practically a mile and a halt, the distanee

Letween the main line track and the passing track

from center to center was 15 feet, from rail to rail

10 feet, and the space between cars on the main track

and on the passing track approximately 6 feet. The

witness who testified that the distance between cars was

about 4 or 5 feet did not pretend to have made any

measure of the distance but was merely making an esti-

mate (Ree. 9).

Nick Franklin, a car inspector of the defendant

called as a witness by the plaintiff, testified that the

customary method in the inspection of a train that was

being made up was for the inspector to begin with the

ears next to the eaboose and continue toward the

head of the train, coupling the air and inspecting the

cars one after another as he went along (Rec. 4, 9).

He was called, upon the death of Mr. Ferguson, and

it was his opinion that he arived at the freight train

about 40 minutes or an hour after the accident (Rec.

96). He found the south 15 cars had the air coupled,

pry

—

igo Ew OODLE FO GI VOLE OIE Le OB RE | LIE AE et

, or

SERGE ADR SR ARRON PES, Fe NE OME OTT A AD IIS Mas WS ENB st! ethene eee

hut those north of the south 15 had not had the

air coupled (Ree. 94). L. E. Crawford, a witness for

defendant, testified that about 12 or 15 cars had been

thrown down to the caboose up to the time the passenger

train came in (Ree. 145). At the time the passenger

train came into Leesville the train crew and engine

of the freight train were at the seale track (Ree.

149) some distance north of the place of the aeci-

dent, where they were weighing cars, and shortly after

the passenger train left, these cars were taken to the

passing track and placed in the freight train (Ree.

176, 177; Burke, Rec. 136). A. H. Thorla, a witness for

plaintiff, testified that he crossed the yards a_ short

time before the passenger train came in. He saw some

ears on the track next to the main line and passed

about 30 or 40 feet north of the north ear. When he

passed the north car he saw Mr. Ferguson walking

around there and earrying a lantern in his hand.

Mr. Ferguson was then right about the end of the ears

(Ree. 111, 112). Travis Barnhill, a witness for plain-

tiff, testified that he saw Mr. Ferguson before the

train came in. Tis lantern was sitting on the ground

and he was standing beside a car with his right hand

on the side of the ear, looking north, and he was at

the north end of the ear (Rec. 104). Reed Holton,

a witness for the plaintiff, testified that he was with

Travis Barnhill; that he saw Mr. Ferguson before the

train came in, standing at the north end and on the

west side of a car, with his hand on the ear, his

lantern sitting by him (Ree. 107). He was standing

at the end of a string of ears (Ree. 109). See also

the opinion of the court of appeals (Ree. 189).

ee nr a aa ea ee ee

) ;

Y 1 . &

No one saw the decedent at the time the passenger f

{rain passed, or for some time prior to its passing. ;

No one testified that decedent was engaged in any

work at the time the passenger train passed, or that

he had just completed any work. So far as the evi-

lence shows he had finished the coupling of the air

and the inspection of the ears then on the passing

ELOISE ES

track, and was waiting for the engine to bring addi-

Sep

tional ears to the track. Plaintiff’s inference that

os)

decedent was engaged or engrossed in his work is not

supported by any evidence in the record, nor is there

any evidence tending to show why he should have

stepped on or near the main line track without seeing ‘

the headlight of the coming train or hearing the

roar and rattle of its approach. The court of appeals

properly found that for twenty minutes before the

passenger train arrived decedent ‘was not performing

Ci Ra aed

any duty there, although expecting more cars to be

Ro ee

ultimately brought up to go in the train being made

up. He was not engaged in inspecting the ears and

in coupling them, as that work had been done as_ to

‘he string of cars assembled. He was waiting for

more ears to be brought there * * * The deceased

failed to use any diligence to get away from the ap-

proaching train, having time to do so; and a_ judicial

finding to the contrary is not warranted’? (Rec. 189-

190, 191).

9, Defendant says (Brief, 17) that it may be

assumed that while decedent ‘‘was engrossed in his

work, if he in fact heard the rumbling, the ordinary

noises of the approaching train, he coneluded that

the same came from the movement of the engine that

was making up the freight train, and certainly that

he may have concluded that there was no train in

dangerous proximity to him.’’

It must be borne in mind that decedent was an

experienced railroad man, with 10 or 12 years’ service

at) Leesville as a car inspector. Tt must have been

an eager jury indeed which could believe that decedent

heard the rapid exhaust, and rattle and roar, of the

passenger train coming from the south, and was justi-

fied in believing that it was a freight engine slowly

shoving cars from the north, and that it was therefore

safe for him to be on or near the main line track,

without looking out for the passenger train which was

ue at that time and whose headlight, according to the

finding of the jury, was visible to him.

3. Plaintiff makes the frequent inferenee in his

brief (Brief, 5, 9, 16, 27) that deeedent was confused

by the blinding headlight) on defendant's passenger

train. The court of appeals held that ‘it is apparent

from the evidence that an occasion of blame for the

death cannot be predicated * * * jin not) diminish-

ing the light of the headlight while going through the

vard’? (Ree. 187, 188, 189): and the finding of the

rourt of appeals on that issue has never been modified

pr reversed, and is not subject to review here.

Furthermore, the ruling of the court. of appeals

was correct. Three witnesses testified that when one

looks toward the headlight of a passenger engine within

200 or 250 feet of it the effect is blinding on the person

so looking (Nelson, Ree. 85; Franklin, Ree. 116;

Anderson, Ree. 170). But there is no evidence in the

record that the headlight is blinding if one does not

look at it, and certainly a man of the experience of the

decedent would not have been so confused by the

headlight that he could not have stepped off of the

invin line track, either to the east or to the west, and

have avoided being struek by the train.

There is no merit in plaintiff’s contention that

there was any negligence in failing to dim the headlight

in going through the yard. The rules of the Interstate

Commerce Commission require railroad companies to

maintain dimmers on such headlights so that they

may be dimmed, but the railway companies may use

their own diseretion as to when the dimmers should

ind should not be used. The practical purpose of them

is to prevent the engineer of one train being blinded

by the headlight of another when they are moving

ihrough railroad yards. There was uo evidence of any

order, rule or necessity that such headlight should be

dimmed in going through a railroad yard on any other

oceasion, and, as shown by the testimony of exeentive

officers of several railroads, the dimming of the head-

light would tend to inerease aceidents rather than

prevent them (Ree, 166, 169, 171, 173). See also, the

opinion of the court of appeals (Ree. 189).

4. Plaintiff, having erroneously assumed that de-

vedent was so engrossed in his work that he failed to

heed the roar and rattle of the approaching passenger

train, or its headlight, whieh the jury found he saw,

further assumes (Brief, 13) that he might have been

warned if the bell had made a ‘‘sharp sound”? (Brief,

SARA PAREN CAN 0

i a te A Ee

Sedeeratser

RRR PTE Fe

Sh Sa Cova Ma das

mas:

fee ai al ois

16). This is piling presumption on presumption, and

purely speculative ones at that (Cunard ete, Co, v.

Kelley, 126 Fed. 610; Atchison ete. Co. v. DeSedille,

219 Ked. 686). If the noise of the approaching train

and the light of its headlight were not enough to waru

ilecedent to step to a place of safety, how could it: be

fairly found that the ringing of a bell would have

vaused or enabled him to do so?

5. Appellant seems desirous of creating the in

ference (Brief, 1) that defendant ‘‘concedes*’ that the

Supreme Court of Texas correctly held its alleged neg-

ligence in failing to rmg the engine bell, proximately

eaused Ferguson’s death, and thus eliminates the ques-

tion of Ferguson’s being guilty of negligence which was

the sole cause of his death, and that we have

‘found no fault with the decision of the Texas Su-

preme Court in that regard." Our views on that

yuestion appear on pages 31 and 320 of our original

brief herein, where we contend that the ‘Texas Su-

preme Court should have found that there has not been

an acceptable adjudication that defendant was guilty

of any negligence.

The court of appeals reached the conclusion, from

the character of the decedent’s injuries (Ree. 190),

and the blood-spots on the step of the pilot (Ree.

188), that the deceased must have been sitting or

squatting near the outer ends of the ties under the

east rail of the main line track when he was struck

(Ree. 108). Plaintiff says that it is ‘‘conceded’’ that

decedent was erect at the time he was struck (Brief,

5, 8, 9), and that the case was tried by both parties

on that theory. No one saw decedent struck; no one

RRR 1 arp pnt NR AO Spe Fo mane Naa ae me See Le —.

knows just what was his position; the question of

whether he was standing or sitting is a matter of

argument, and not of concession, and the court of ap-

pearls found he was sitting or squatting (Ree. 190).

6. In our original brief (p. 18) we contended that

if it was the custom for defendant's trains to have

their engine bells ringing in going through the Lees-

ville or other yards, this practice was merely an ad-

ditional precaution to warn of the approach of trains,

employes or other persons who might be lax in their

duty to be on the lookout for such trains. Plaintiff

contends (Brief, 18) that the purpose of this practice

was not to add an additional safeguard for the pur-

pose of assisting employes in protecting themselves

from death and injury, but was to take from them their

instinet of self preservation, so as to increase efficiency

and ‘foutput.** There is no support in the evidence,

record, faet, or conscience, for this reckless contention.

Respectfully submitted,

Frank IH. Moore,

J. J. Kina,

J. Q. Manarrey,

A. I. Souirn,

Attorneys for Petitioner.

S. W. Moore,

Of Counsel.

5 ah oy

a a

a4,

Pips

inp aep

Cree

EEE I

a aba thas i

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.