Petition for Writ of Certiorari — Rogers v. Missouri Pacific Railroad

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SUPREME COURT OF THE UNITED STATES,

Ultice - Seine | Lage 7 Hes

JAN 11 1886

HAROLD B. W. CEY, Cierk

OCTOBER TERM, A. D. 1955%

‘JAMES C. ROGERS, .

Petitioner,

VS.

GUY A. THOMPSON, Trustee, MISSOURI PACIFIC

RAILROAD COMPANY, a Corporation,

| Respondent.

"PETITION FOR WRIT OF CERTIORARI

To the Supreme Court. of Missouri.

° ' : ¢

MARK D. EAGLETON,

: _ THOMAS F. EAGLETON,

3746 Grandel Square,

St. Louis 8, Missouri,

- Attorneys for Petitioner.

“ Sa a

* $2. Lours Law Painting Co, 415 North Eighth Street. Cntral 1-447.

INDEX.

Opinion of the court below.. 4 wees ete vinweaent

Statement of grounds on which saptediction of this

court is invoked - acess: a orere senda gee

Questions presented ........ pitas - et Te secs

Statutes involved er ee

Statement of material facts ......2.........: 20005.

Reasons relied on. for: the allowance of the writ......

| I.. ,

{

(1) The state court by its decision’ and judgment’

_ in this cause denied petitioner a right specially

_ set. up and*claimed by him under the Federal:

Employers’ Liability Act, namely, the right to

have his case submitted to a jury on the theory

that the petitioner, while admittedly employed.

ce by respondent in interstate commerce, was in-

‘ jured as a result of the negligence of the re-

spondent in fi ling to/use ordinary care to fur-

nish the petitioner a reasonably safe place in

which to work and a reasonably safe method

with which to perform said work............

_ A. The state court usurped the funtion of

ee. ie eam yer ies: eee ee eaerevebens

Fae, eae |

The state court based its opinion upon a theory not

presented by the respondent in its Answer (R. 6,

7) and upon a theory that was not submitted to

the jury (R. 419 to 427)..... ax Weed ask are He

bY: re

TIE.

The state court usurped the function of the jury

in deciding as a matter of law that petitioner's |

.injuries;Were' not related to the negligence of the

respondent.fnd it narrowed! the concept of ‘‘prox-

imate wause’’ under the Federal Employers" Lia- :

:. bility Act...... ae ere Peres yh eteveelees 13

Argument amplifying the reasons ‘polled on for the .,

allowance of the writ te POT e Pre eee rT TO wr , 8

' Prayer PO art ee Re een eed et eee 24

| Poa Cases Cited. _ |

Bailey v. Central Vermont R. Co. (1943), 319 U: S.-

_ 350, 63 S. Ct. 1062, 87 L. Ed. 1444 .....-...... 11, 14, 15

Eglsaer v. Scandrett et al., 151 ‘F. 2d 562...,: Me 18, 22, 23,

Larend. Kurn (1946), 327 U.S. 645, 66 S. .Ct. 740,

90. L ;. Seer aga Wk nk re Bika ce 5 hws a eaatet 12,-15

Tennant v. Peoria & Pekin Union R. Co. (1944), 321

U.S. 29, 64 8. Ct. 409, 88 L. Ed. 520.....:......12,22

Wilkerson v. McCarthy et al. (1949), 336 U. S. 53, 69

S. Ct. 413, 93 L. Ed. 497 Tee error rer = em

\ . j ; ;

_* « .. Statutes Cited.

Federal Employers’ ‘Liability ‘Act, 35 Stat. 65, 36 Stat.

| 294, 53 Stat. 1404, 45 U. S. Code, Sections’ 51- 60. 2-3, 5

- 98-U. S. Code, See. 1257 Mae pare ep pere a

ee a on vic nk ctNackads ay era 5

O65. ©. Gi Code, Bee) GB. ni itceccccsies nena es .* '§

45 U. S. Code; Sec. 54................ ape eR ya ool ye

45 U. S. Code, Sec. 56......... irra Steines ae

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM; A. D. 1955.

JAMES C. ROGERS,

Petitioner, .

VS.

GUY A. THOMPSON, Trustee, MISSOURI PACIFIC

RAILROAD COMPANY, a Corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI

. To the Supreme Court -of- Missouri.

_ °

To: the Honorable The Supreme Court of the United States

of America:

Petitioner renpecttally petitions this Honorable Court

to grant the Writ of Certiorari to the Supreme Court of

Missouri in the above case. In this behalf, petitioner shows

unto the Court: hee Py ia Brite, \

OPINION OF THE COURT BELOW.

James C. Rogers, Plaintiff (Respondent), v. Guy A.

Thompson, Trustee, Missouri Pacific Railroad

Co., a Corporation, Defendant (Appellant).

The opinion of the Supreme Cotrt of Missouri is not

yet reported but it appears at pages 439 to 449 of the Rec-

ord and is set out verbatim in Appendix A.

“

_ The jurisdiction of this Court i is. based upon- thie

_ Congress_-of-June 25, 1948, c. 646, 62 Stat. 929, Title 3s,

U. S. Code, See. 1257 (3) prov iding that this Court may,

by writ of certiorari, review any: final. judgment orsde-

erge rendered by the highest court of,a state in which a

-, decision could be had, where any title, right, privilege

or immunity is specially set up or claimed under the Con-

stitution, treaties or statutes of, or commision held or

authority. exercised under, the United States.

Judgment of the haan Court of Missouri, Division

No. 1, sought to be reviewed, was entered on the 14th day of

Nov ember, 1955 (R. 437-438) and is set out in Appendix B.

Ther caller on the 28th da} of November, 1955, the

- petitioner filed a Motion for Modification of the, Opinion

Transfer ‘to the Court En Bane (R. 449) and these are

of the Court, and for a Rehearing, or, ib) Altérnative,

completely set out as Appendices C and

Thereafter on the 12th day of December, 04955, the |

Supreme Court of Missouri overruled the motion to modify:

' the opinion of the Court and overruled petitioner’s motion

for rehearing and overruled. petitioner’s motion to transfer

to the court en bane; and said judgment became final

—_ (R. 476). The order overruling said motions is contained

in Appendix KE. > 3 inl i

Division No. 1 of the Supreme Court of. Missouri upon

its refusal to transfer the cause to thé court en banc was_

the highest court of the state in w ich a decision could

be had in said cause; and. in said cause the etitioner

specially set up and claimed a right under a Statute of

the — —s namely,-the "Federal Employers’ Lia-

_ bility Aet, 35 Stat. 65,°26 Stat. 291, 53 Stat. 1404, 45 U.S.

~ Code, Sections “51-60. eo a ;

It is claimed that the decision of the wa court ones

this federal statute “is not in accord with applicable de-

cisions of this court.’ 7 . “s

ee QUESTIONS PRESENTED.

ss 4 5) that the

‘It being: admitted by the pleadings (

petitioner’s duties as an employee of the spondent. were .

in furtherance of: the ‘interstate cominer nspgrtation

~ business of the respondent and thateby reason “t

_ petitioner and the respondent were at all times engaged in’

interstate commerce and were subjectato the Federal Km-

ployers’ Liability Act, 45 U.S. Code, secs, 51 0, the ques-

tions presented for review are: :

(1) Whether, the petitioner Who had no experience what- |

-¥oever in firing weeds along the respondent’ s right-of-way

(R. 15) and who theretofore -had never seen anyone at-

tempting to.do so (R. 15) was entitled to. have the negli-

gence of the respondent submitted to the jury where the

uncontradicted, evidence ‘showed that the respondent re-

quired the petitioner (R. 20, 21, 88, 89, 90) to be upon said

r{ght-of-way. in close: and dangerous proximity to a passing

train of the respondent which .éaused the fire to blow

toward the petitioner and thus.to endanger his “safety

(R. 23).

(2) Whether, the petitioner\was entitled to have the jury

‘consider the respondent’ s a ce in creating the afore-

said: dangers, thereby causing the petitioner to retreat and

‘move quickly from the place where-he was standing, while

inspecting the passing train for “hot boxes”’ and ‘thus to

use as a place of work a part of the respondent’s right-of- |

way covered with loose and sloping gravel which did not .

‘ provide adequate and sufficient footing for the petitioner

to méve. in.a reasonably safe manner.

boxes.’ | oT :

“J ~-4 —_

Pasbsegten hey, San: penitionee, ander the ciroumatantes”

. insite and | danger ous in that (a) ‘ie petitioner

was” required. to burn weeds which had previously been

* cheniically prepared so that they would ignite rapidly; (b)

_the petitioner was furnishe@a.hand torch to ignite the ~

_ weeds, and the physical limitation of the hand toreh- Te- |’

quired the petitioner to be in close. proximity (within six

feet) of the flame; (c) the petitioner was required to bury

the weeds in such close proximity to respondent’s. tracks

that: air disturbance from trains passing at 35 to 40 miles: °

per hour would blow the fire toward the petitioner; (d)-

the respondent did in fact. operate its train at .a speed of ©

frotn-35 to 40 miles per hour and did cause the fire to blow. .

. toward the petitioner; (e) the respondent did not provide

the petitioner w ith a path or other means adequate for es- «

- cape from the fire; (f) the respofident pa plows ;

the duty upon the petitioner to stand on the west shoulder

dnd. af inspect andl watch the passing train for<‘‘hot

(4): Whether, the ralpraienige is ab to have sup-

mitted to the’ jury’ the nature of the task which the peti-.

- tioner was perfor ming, the hazards ‘which it entailed, the

effort which it required, the kind of footing he had, the —

_ Space in which he could ‘stand, walk or run in order to es-

— eape the. perils of the fire set upon him by the movement of

the respondent’ s train so that the jury could consider all

these facts and circumstances in determining w hether the

respondent was negligent.

Peis: Whether, the state court has narrowed Ahe concept

‘proximate cause” under the Federal Employers’ Liabil/

a and has usurped the function of the jury in holding —

i a matter of. law that the petitioner’s injury was not -

proximately caused -by negligence of the respondent.

Wo ES ae Se eee ee

eae She oo ae oN

— 6 a) :

; |

* = ". ee 5

/ .

#y ig STATUTES INVOLVED.

The statutes involved are; ne; ee ‘

28 U.S, ¢ bale, S See, 1257 ( Appendix F).

450. s. Code, See, 5i (Appendix G).

\ 45 U. S. Code, See. 53 (Appendix H). ~ . ee

45 U.S. Code, See. 54 (AppendixI). =

45 U. S. Code, See. 56 (Appendix 'J). z 7 |

STATEMENT OF MATERIAL FACTS.

E Under the pleadings TE. 2 a 5) it was admitted that the

petitioner’s duties as an employee of the respondent were

in: furtherance of the interstate commerce transportation

‘business of the respondent and that: by reason thereof the

. petitioner and the respondent were at all times herein

mentioned engaged in interstate commerce and were sub-

ject to the Federal er Liability Act, 45 U. S.

- Code, seds. 51-60. i

‘The petitioner, 7 years old at the time of tr ial, married,

~~ father of one child (R. 8, 9), brought this suit against:

- Q@uy A. Thompson, who was operating as trustee, the —

_ Missouri Pacifie Railroad Company, to recover damages |

for.injuries sustained at Garner, Arkansas, through the

negligence of the railroad, in failing to use ordinary care

’ to furnish the petitioner a reasonably safe place in which

to work ora reasonably safe methgd of doing said .work.

| The petitioner. at the time of injyry was assigned to the

task of burning weeds by the use of a hand torch. He had

no warning or preparation as to-how gp safeguard himself

from the perils of fire fanned up by-a passing train oper-

ated by the respondent. The injury Pe, July 27,

1951, about 10:30 A. M. (R. a o.

The petitioner had two duties to perform at < one and the -

same time: (1) to inspect passing trains for ‘‘hot boxes"

and (2) to attend the fire then set on the shoulder. The

perférmance of both of these duties required petitioner

togge upon the west shoulder of the genet’ s right-of-

(Re aoe:

To the i, west and north of the petitioner were

weeds (R. 28) prepared for rapid ignition by chemical

spray previously applied by the respondent’ (R. 58, 60, 86,

194). These dead weeds were thicker and taller toward the

north,, the direction toward which : he. was: working (R.

194), and the culvert was located only 30 or 35 yards north-

of the petitioner. (R. 18). The west shoulder, on which —

petitioner performed his’ duties, was‘flat and three or four

feet wide (R. 13), offering exit from the flames ge as far

north as the culvert from which he fell (R. 24, 25, 185,

186). At the culvert; such exit ended, and there was no flat

shes or.w alkway on the culvert {R. 24, 2, 185, 186).

This was the first time the petitioner had ever attempted

to do said work and he had neve watched anyone attempt

to do it theretofore (R. 15). He had. been given this hand

torch only 30. to 45 minutes before the injury oceurred

(R. 16). Pe , oe ee ey

On this occasion the petitionir ‘was not notified by any-

one”? of the approach of the northbound train involved

~ herein (R. 26, 62). ‘Ordinarily, the section foreman would

notify his crew to clear ‘the tracks prior to the approach

of a train (R. 26). That was the foreman’ S. job’ and the .

section crew would continue working until he called

“train”? (R. 26, 62).

He was téld by the foreman not to cross to the east be-

cause ‘* the sound of one train. would deaden the sound of -

another one that possibly would come from the other way’’

(R. 21). He was further told. Ja eee stand on the

Speen >: — (a

———

ge ae . ° ‘ > ee . °

. ¥ .

shoulder’’ ¢R. 91), The only other instructions ,given to

-_ ‘petitioner were to the effect that whenever a train was .

: passing ‘‘to drop everything” he was doing’ aiid watch for

**hot. boxes’* (R. 20, 88, 89, 90). Standing on the west

‘shoulder, as above: directed, would place the petitioner in —

- lose proximity to the tracks whereon: respondent’ $ trai

was moving (R. 19).

When ilies ha the whistle of the northbound

. train’ (the only notice he had) he immediately ran .a dis-

tance of 30 to 35 yards to the north before he set down his _

torch; this was the amount. of space interv ening between

him and the culvert ‘that was north of liim (R. T8, 22).

While running to the north, the petitioner necessarily had

his back to the fire which was south of him. He ran this -

‘distance in order to get far enough away. fr om the fire to

clear himself (R. 23) and when he réached this point he

thought he. was ‘‘plenty far enough’’. to clear himself 6f |

the fire “or any danger of the fire and it was time to start

to watch these journals’? (R. 23). He took his position on

the west shoulder where he was told to stand (R. 21)...

At this instant, the northbound engine” had. already

passed him (R. 22, 28). ‘He began watching the passing

~ train for ‘‘hot boxes’’ under instructions theretofore given.

to him by his. foreman. While thus watching ‘said “hot.

boxes’’ (a period of 2 or 3 seconds) appro\ rimately three

or four cars went by at-a rate of 35 to 40 miles per hour

“ 180-181). He was then overtaken by ‘‘fire right. up

n’’ his face (R ~93). This caused him to retreat quickly

et 23, 28, 63). He threw his left’arm over his face, back- -

' ing away rapidly, six or eight féet onto the culvert imme-

_ diately north of Itim, at-which time he fell because of - ty

inadequacy ,of the footing there provided. to him (R.

, 24, 28, 67, 98, 114, 193). . l

. When he stepped upon the crushed rock along the west-

ern is of the culvert, the crushed rock rolled out from.

—S8—. ¢

his feet, causing him to fall and to be injured (R. 25, 68,

69, 90, 91). ‘He did not and could not lock to see where he

was going (R. 23, 68). At this point he had fire and smoke

_in his eyes and could not see (R. 23,68).

In thus moving to the north, he moved té the only diree-

tion that was open to him. He could not move. to the

south, because that direction. was blocked by the fire (R.

86). He could not move to. the west because doing such

‘would have placed him in weeds which were chemically -

prepared for burning and they were immediately adjacent

to the fire (R. 58, 60, 86, 194). He could not move to the

east, because he had been specifically instricted by the

foreman not to stand on, or close to the adjacent track if

a moving train was on the other track (R. 21). He was

told to ‘‘always stand on the shoulder’? (R. 21).

The petitioner, who had no previous experience, did not

know that the passing train. would cause sufficient wind to

fan or blow the fire (R. 23, 87). He knew the train would

_canse wind (R. 87), but thought the wind would not affect

the fire too much because there wa® another track (the

southbound track) between the train and the petitioner.

-. (R87, 19).

The foreman was aware that the weeds which he ordered oe

the petitioner to burn were dead, having been killed by a

prior chemical spray. (R. 287).. The foreman. had a great

deal of-experience in doing this kind of work and had for

-- over twenty years used a flame-thrower machine to fire the .

shoulders (R. 19, 84, 85, 304). ‘This machine permits the

employees to remain in a place of safety as they are sta-

tioned on a part of the machine approximately 15 or 20

yards away from the fire (R. 16). The petitioner testified

that was the normal method of doing said work (R. 16).

The foreman, however, testified that the flame-thrower had

heen discarded some years before the date of accident be-

cause it caused too much damegge along the gight-of:way i

(R. 269} 300). hoe . . a

_ The petitioner testified he knew it was his primary .duty

* to watch the fire (R. 90), and that he was never told ‘‘to

- completely ignore a fire You set’? (R. 89); but the positive

order to watch for ‘‘hot boXes’’ remained in effect and he

_ Was given no w ayning: or instructions as to the manner of

performing thase two tasks simultaneously. Neither tlie

foreman nor any other witness’ testified or even intimated

that the petitioner’s attempt to perform these two. tasks’.

was improper: or different fr om w hat was expected of him.

The petitioner alleged (R. 3). ‘‘that.the said method of-

doing said work and the place of work thus provided .be-

came’ and ‘were unsafe and dangerous and -defendant: in

thus adopting said method and furnishing said place of

work, failed to exercise ordinary care. and was guilty of

negligence and by reason thereof, plaintiff was caused to

fall and to be injured thereby all of which directly and

* proximately resulted, in whole or in part, from. the negli-

ence. of the defendant as aforesaid. Jee

‘The respondént i in his Answer (R. 5, 6, 7) denied his own

negligence: and .alleged that the petitioner’s injuries. were

directly caused by the petitioner’s own ngligenee and care-

lessness in four respects: (a) in failing to keep a lookout

ahead and. laterally in the direction in which he was walk-

ing (R. 6); (b) in failing, to maintain secure footing in the

circumstances under “whjth he was working and perform-

ing his duties (R. 6) (4c) in walking backwards or side-

wards without looking in the direction in which he was

/ walking and without ascer taining for himself the security

of his own footing (R. 6); ; (a) in making a mis-step at a

time when tlie petitioner w as familiar with the conditions

+ under-.which he was required to work and the structure of

the ground upon which he was working and in thus failing

to protect himself from slipping and falling (R. 6, 7).

—_

~The respondent did not allege or claim in his Answer

that the petitioner was negligent in failing. to, ‘fattend or

Ww atch’? the fire. .

_Thegtrial ‘eourt submitted .the case to the jury sisi

* written instructions and the jury returned a unafimous

verdict dx favor of the petitioner and assessed his damages —

in the sum of Forty Thozsand Dollars ($40,000.00) (R.

426). Before it could return a verdict, the jury was re-

quired to find that the respondent was negligent in failing —

to use ordinary eare to provide the petitioner with a rea-

sonably safe place in which to work ‘and a reasonably safe |

method of doing said work under the circumstances afore~.

said (R. 419, 420, 421).

At the request of the respondent, the issue of the peti-

_tioner’s alleged negligence in failing to guard properly his

footsteps was submitted to. the jury (R. 421-422). The re-

spondent did not request the trial court to give any in- |

structions authorizing the jury to find that the petitioner

was guilty of negligence in leaving the fire ‘‘unattended

and unwatched”’ or in creating. any emergency, and no

such instruction was given by the trial court of its own mo-.

tion (R. 419 through 426).

The trial court accepted the verdict of the jury.and

entered judgment thereon. Thereafter, the respondent’s

motion for a new trial was overruled (R. 431).. The re-

spondent appealed to.the Supreme Court of Missouri, which

court reversed the judgment (R. 437-438) holding that the

petitioner had failed to make a submissible case.

REASONS RELIED ON FOR THE ALLOWANCE

OF THE WRIT.

Sw The State Court by Its Decision and J udgment in This

Cause, Denied Petitioner a Right’ Specially Set Up

and Claimed by Him Under the Federal Employers’

Liability Act, Namely, the Right to Have His. ma

" ’

Submitted to a Jury on the Theory That the Peti

tioner, While Admittedly Employed by Respondent

Interstate Commerce, Was Injured as a Result of the

Negligence of the Respondent in Failing to Use Ordi-

nary Care to Furnish the Petitioner a Reasonably Safe

Place in Which to Work and a Reasonably Safe

Method With Which to Perform Said Work.

The judgment of-the state court, if permitted to stand,

will deprive this petitioner of the right of a trial by jury,

_a basie feature of our system of federal. jurisprudence.

State courts generally will be encouraged ‘to disregard the

clear and repeated pronouncements of this Court to the ef- > ,

fect that the trial court must submit the issues of negli-

gence to a jury whenever the facts establishing negligence ;

are in dispute.or the evidenee is such that fair-minded

men may draw different inferences therefrom. Under such

circumstances the jury is free to discard or disbelieve

_ whatever facts are ‘inconsistent with its conclusion and it

is immaterial that the court might draw a.contrary infer-

ence or feel that another conclusion is more. reasonable.

This court granted | certiorari to the ‘Supreme Court’ of

Missouri in the Lavender case cited below wherein the

rules announced above were authoritatively stated by Mr.

Justice Murphy speaking 1 in behalf of this court.

Bailey v, Central ‘Vermont R. Co. (1943), 319 U.

350, 63 S. Ct. 1062, 87 L. Ea. 1444;

—L2-

Tennant v. Peoria & Pekin Union R. Co. (1944), 321

U.S. 29; 64 S. Ct. 409, 88 L. Ed. 520;

Lavender v. Kurn (1946), :327 U. S..645, 66'S. Ct. 740,

: 90 L. Ed. 916; .

Wilkerson v. McCarthy et al.'(1949), 336 U. S. 53, 69

S. Ct. 413, 93 L. Ed. 497.

A. The state court usurped the function of the | jury.

It was the function of the jury to determine whether or

not the respondent was negligent in requiring this inex-

perienced employee to ‘perform conflicting duties at one.

and the same time, in adopting an unsafe method to do the

‘ particular work, in furnishing inadequate footing in which

to perform this task. It was tre” province of tlie jury to

weigh the hazards and effort which the work entailed,

. and to appraise the kind of footing and the space pro- -

vided by respondent in which the petitioner could stand

or mgve in order to escape the perils. of the smoke gund

flames blown toward him by respondent’s train. :

cat | ae | ‘?

The State Gourt Based Its Opinion Upon a Theory Not.

‘Presented by the Respondent in Its Answer (R. 6, 7) -

and Upon a Theory That Was Not Submitted to the.

Jury (R. 419 to 427). |

The state court pive oted its opinion upon the assertion

that petitioner was injured through an emergency ‘brought

about by himself in leaving the fire “unattended and un-

watched’’ (R. 448) (Appendix A, page 39). This conclusion

was not warranted by the evidence and the state court re-

_ fused to modify its opinion (R. 450 to 453) (Appendix: ()

to show the record facts (R. 180-181) to the effect that the

petitioner necessarily while running north 30 to 35 yards:

. in an effort to get far enough away to clear himself of the

—13—

fire. (R. 25) had to have and did have his back tg the fire;

that he then stood on thf west see where he was told

to stand (R. 21) for ohly 2 or 3 seconds before he was

overtaken by the flames; that during this few seconds’ in-

terval he was following the instructions of the respondent

theretofore given him “to drop everything” and watch for

“hot boxes” on the passing trains (R. 20, 88, 89, M0).

| ITI

~~ State Court Usurped the Function of the Jury in De-

‘, ciding as. a Matter of Law That Petitioner’s Injuries’

_ Were Not Related to the Negligence of the Respond-.

_ ent and ‘It Narrowed the Concept of “Proximate

Cause” Under the Federal Employers’ Liability Act.

Under the Federal Employers’ Liability Act the con-

eept of proximate cause is enlarged by the wording: of the

statute and makes the employer liable for his negligence

- even though some other factor may logically be said to be

-more inQuential in producing the injury. See: Eglsaer v.

. Seandrett et al., 151 E. 2d 562, 1. ¢. 565, wherein this

thought -is alma in a quotation fromm Mr. Justice

Holmes: “We must took at the situation as a practical unit,

rather than inquire into a purely logical priority.”

ts ;

ARGUMENT AMPLIFYING THE REASONS RELIED

ON FOR THE ALLOWANCE OF THE WRIT.

‘Iti is elemental that ‘the reqpouiient owed the petitioner

the duty to use ordinary care fo furnish the petitioner (1) -

= _ a reasonably safe place to work and (2)°a reasonably safe

method of work. This duty was a continuing duty and

the respondent was not relieved of its obligations because ,

ee NE

the petitionér’s work at the place and by the method in |

‘question was fleeting or infrequent. Bailey v. Central Ver-

mont R. Co. (1943); 319. U.S. 390, 63 S. Ct. 1062, 87 L. Ed.

- 1444.

The mere fact that the petitioner was performing a task

which was not of daily routine did not lessen the dangers

attached thereto nor change the above standards of law.

The continuing duty of the respondent followed the peti-

tioner wherever he might go in the course of performing

the work assigned to him by the respondent. ;

The state court in‘its opinion (R. 443), Appendix A, pa oo

30, states the contentions of respondent as follows: |

: As: stated, defendant- -appellant contends the’ trial

court erred in overruling defendant’s motion for a di-

rected verdict. It is said there was no proof that an

accident and injury could have been reasonably fore-'-

seen from the manner in which the drainage culvert

was constructed and. maintained; and there. was no

evidence that plaintiff’ s alleged injury was proxi-

mately caused by the method adopted by defendant

in burning the weeds or that’such an injury or danger

could have been wet 0 foreseen ‘in the method

used by defendant.’

‘In the light of the record facts these contentions are un-

tenable. The record: is clear that the respondent priorto

.the petitioner's injury did nothing to foresee or anticipate

the likelihood of petitioner’s s injury, although the respond

ent was under a’ duty’ to do-so. Had the respondent given

any thought to. the matter ee ‘N

1) He would not have ordered ‘the inexperienced .

petitioner to stand and work upon the west shoulder |

in close proximity to the tracks upon which a train >

was then and there ne: operated while the weeds .

were burning. nearby. :

( =s debatdble quality of that issue, the

f ™ ‘

See

2) He would not have sent a train at such speed

that it would. cause the fire to fan and spread rapidly.

The combination of the ahove two conditions sanees he

reconciled with care.

3) If, however, he negligently insisted upon the

above conditions, then he .should-have warned the peti-

tioner of the dangers involved and he should have

provided adequate means of escape therefrom.

No crystal ball was needed. Given the facts in this rec-

ord, an injury wag almost inevitable.

Paraphrasing the’ words of Mr. Justice Douglas iv the ~

Bailey case, supra, os he

‘these were facts and circumstances for the jury to

weigh and appraise in determining whether respond-_

“oy ent in furnishing the petitioner with that particular’

plaee in which to perform the task os negligent. The

fact that fair-

_ minded men night reach different conclusions, empha- .

‘size the appr opr iateness of leaving the question to the .

jury.”’ (Words ‘in italics paraphrased. a

A) The state court, usurped the function of the jury

when, it desided as a matter of law that the “evidence is

compléfely lac ‘king in probative facts supporting conelu-

"sion, that defendant’s negligence, in whole or in part, con-

tributed to plaintiff's: at - 448). Appendix a.

page 39. . ° Of agen Sa

ae applicable. rale of Lew erica ag Saye ">.

*. Justice Murphy in Lavender v. Kurh (1946), 327 U.

: 645 le. 653, 66S. Ct. 749, 90-L. Ed 916, 1. ¢. ef

‘*Whenever faets are in dispute or the ev etine is

such that fair-minded men may draw different infer-

ences, a micasnre of. speculation and conjecture is re-

- Black said:

a ee

quired on the part of those whose duty it is to settle

the dispute by choosing what seems to them to ‘be the

most reasonable inference. Only when there is a com-

plete absence of* probative facts to support the conclu-

sion reached does a reversible error appear. But

where, as here, there is. an evidentiary basis for the

jury’s verdict, the jury is free to discard or Pla

whatever facts are inconsistent with its gonclusion. . ,

‘‘And the appellate court’s function is exhausted

when that evidentiary basis becomes apparent, it be-

ing immaterial that the court might draw a contrary

‘inference or feel that another. conclusion is more’ rea-

sonable.’ : : ,

This Court sieiblathcd the’ same sant Wilkerson

v. McCarthy et al. (1949), 336 U. S. 53, 1. ¢. 55 and 57; 69 -

S. Ct. 413, 93 L. Ka. 497, 1 e. 501, wherein Mr. Justice iy

“This Co Kt has previously held in many cases that

_ where jury frials are required, courts must submit the

issués of fiegligenee to a jury if evidence might jus-

tify a finding either way on those issues. ee it

was because of the importance of. preserving for liti-

- gants in FELA cases their right to a jury tial that -

we granted fertiorari i in this case.’

The opinion continued (I. e. 502):

‘It is the established rule that in passing upon

whether there is sufficient evidence ,to submit an issue

~ to fie jury we need’ look only to the evidence and rea-

sonable inferences which tend to support the case

~™“of avlitigant against whom: a Speremptory on

has been given,”’ | ee et,

If.

{

. . : : we . .

The errors into which the state court fell are manifest.

“A) After seare hing: the veered: it brought forth a theory

of its own w hich was not presented by the respondent | ins .

the pleadings nor was it submitted by the respondent ‘to

the jury at the time of trial. Nowhere in the respondent’s _

Answer (R: 6, 7) did the respondent allege that the peti-

tioner was guilty of negligence , in ignoring the fire or

leaving it ‘‘unattended or unwatched”’ and the respondent

did not request the trial court to give an instruction sub-

mitting any such issue (R. 419-427). The state court,

however, in its opinion, stated: ‘‘It is true plaintiff was

confr onted by an emergency, in a sense; but as we shall

see, it was an emergency brought about by himself’ (R.

_ 447). Appendix A, pages 34-35. This conclusion is not war-

ranted by the evidence and it is certainly not in accordance

with the statement.of Mr. Justice Black in the Wilkerson

case, supra, to the effect that ‘‘We need look only to the

evidence and reasonable inferences which’ tend to support

the case of a litigant.’ *. “

In the first place, the sitinnts did not create the emer-

gency. It was definitely created by the respondent who

required the petitioner to be upon the west shoulder of.

its right-of-way (R. 21) watching trains for ‘thot boxes’’

which duty the petitioner was not free to ignore’ since“it

‘was imposed upon | him by the respondent. He~could not ;

move to the south and into the fire, nor to the west, which .

the fire would embracé (R. 58, 60). He was prohibited by * 7

positive instructions from crossing over the tracks to the

‘ east beeause of the dangers incident to such crossing (R..

1). This was the first time the petitioner had ever at-

tempted to perform this duty .(R. 15) and he had never:

seen anyone else attemp®to perform it (R. 15). He did.

not know that the passing train would cause sufficient wind |

to fan or blow the fire (R. 86, 87). He thought he was

a safe distance away from the fire whén he was overtaken

_ by it while watching. for ‘‘hot boxes’’’on the passing

train (R. 20, 88, 89, 90).

The interval, used by the petitioner, cov ered only a mat-_

ter of two or’ ‘three seconds, as the uncontradicted evidence

showed that. only three or four cars of thé train (R. 180-

181) passed during the short period while the petitioner, :

pursuant to positive orders, was watching for “‘hot boxes. ee

Since the train was moving_at the rate of 35 to 40 miles

per hour (R. 180-181) it was traveling at the rate of ~~

49 to 56 feet per second. Therefore, it would travel three Sh

or four car lengths (120-160 feet) in two or three seconds. -.

‘ All the evidence showed that only three of four. cars

passed him (R. 180-181) while he was directing: his atten-

tion to the ‘‘hot boxes.’? It was only, during that short

-* interval of two or a seconds that the petitioner left

. the fire ‘‘unattended and unwatched.’’ .

}

These are the undisputed facts which are determinative

of whether or not the petitioner created the emergency in

leaving the fire ‘‘unattended and unwatched.”” These same __

“facts, ignored by the’ state sonal in its opinion, are de-

cisive of the issue that it was the respondent who actually ~—

created the: emergency by compelling the petitioner to

' watch the ‘‘hot boxes’’ at a time when it was highly dan-

gerous for hitp to do do. It was the imposition of these

concurrent and conflicting duties that helped to make the

a respondent’s method of doing the work an unsafe and dan-

gerous one." pa NMR dutiés were imposed upon the

petitioner by the\respondent at the very time when the re-

spondent caused its train to move ‘at such rate of speed

that it did fan the fire toward the petitioner, whose place

of work on the west shoulder was selected by the respond \

. ent (R. 21).

Conceding that the petitioner eo that his “Drie |

_mary”’ duty .was to attend the fire and that he was not

“3 - 9% ‘ cd

‘told to ignore the fire’ completely (R. 88), it does not fol-

_ low that said duty was exclusive nor that he could ignore

his concurrent duty, that of watching for ‘‘hot boxes.”

The various labels on duties, whether they be called

‘‘first,’’ ‘‘primary,’’ ‘‘positive’’ or anything else, must be

considered and evaluated inthe light of all of:the cireum-

stances present. Of-necessity, for a two or: three second

interval, the. petitioner was required to gi “attention to

one duty rather thar to the other. To. il ustrate: A loco-"

motive fireman is under the duty to watch his boiler and

the amount of steam that is foming up and at.the same |

time is under the duty to keep ‘a lookout w hile approaching a

public crossings. It could well be said that the duty of

watching’ the boiler and the steam is his ‘‘primary’”’ |

“first”? duty. On the other hand, we know that the nd |

of the train and its passengers,.as well as the safety of the

public depends upon tlie performance of his ‘‘positive’’

duty to keep a vigilant watch while appr oaching public

crossings. Can it be said that while the fireman is looking

out of the window for two or three seconds in the perfornt-

ance of his ‘positive’? duty, he is guilty. of negligence in.

not performing the ‘‘primary’’ duty of watching the steam

‘during that Very same interval of time? The answer is

‘‘No,”’ because of tlre very nature of the duties. . A: jury,

must appraise an employee's conduct in the light of all the

circumstances in evidence. It must be remembered,oo,

that the petitioner who was not.even charged -with negli-

gence in‘ leaving the fire ‘‘unattended And unwatched"’

eannet have his recovery defeated by_ gputributory negli-

renee,

B) It wil-be-farther-voted that the state eourt Aisposta

of vital issues, to-wit: Whether the respondent: Pxercised

ordinary care to furnish the petitioner a meni safe

place in which to work and a reasonabiy safe method of

work simply by holding that the hand toreh (in itself)

ae ee

was safe and didnot make the fire dangerous. The lan-

guage employed by the state court is as ‘follows: ‘‘Nor was

there evidence. tending to show that the use of the hand

torch (in itself) was an unsafe method or a more danger-_

ous method than any other in burning weeds. * * * And

the use of the hand torch in firing the weeds did not make

the fire dangerous”’ (R. 447-448), _— A, , page 35.

Such a simplification of the issues ‘was unjustified: The

petitioner does not contend that the hand torch alone en-

dangered his safety. The state court ignores all of the

other facts and circumstances in evidence. The petitioner,

an inexperienced employee, was told to stand on the west:

shoulder (R. 21). He was instructed to watch the passing

‘train for ‘‘hot boxes.’’ -This necessarily brought him into.

close and dangerous proximity to the passing train. He .

did not know the dangers that attached to this work and

had received no warnings or any other preparation for

it. While thus*following instructions, he: was imperiled by

the fire ‘and. flames which were blown toward him by the

passing train controlled by the respondent. His peril was,

caused by three things: (1) respondent’s demand that the

inexperienced petitioner stand and work’ upon the west

shoulder in close proximity to the tracks upon which a

train was then and there being operated while the weeds:

were burning ‘nearby; (2) respondent’s sending a train,

_under the circumstances aforesaid, at such rate of /speed

Syhat it did cause the fire, to fan and spread rapidly ; and

(3) the failure of the s*spondent to prov ide, any reason-

pee safe means of escape.’ -

These are the record facts and it is no @uswer ‘to re-

spondent’s negligence under the circumstances here shown

to simply say that the hand torch (in itself) was not dan-

‘gerous and we think it is illogical to contend that these

hazards can be considered as isolated and detae hed ele-

ments. They were‘all related to each other and respond-

sent iéannot be absolved merely because said. hand torcti

“~

—~!

OP te Oo

_ (in itself) was not unsafe or because the path over the

culvert might be reasonably ‘safe for other section men, at

other times, performing other duties.

0 III.

A) The state court usurped the function of the jury in

deciding as a matter- of law that-the petitioner’s injuries

were not related.to negligence on the part of respondent.

In‘ the words of Mr. Justice Black, in the Wilkerson: case,

supra, a

‘Sits finding of an abserice of negligence on the part

of the railroad’ rested on that court’s independent

resolution of conflicting testimony”’ (93 L. Ed. 501).

In light of the facts, hereinbefore presented, it is diffi-

cult to understand how the state court: reached the con-,

clusion that the petitioner’s movements in escaping from

the fire were - ‘extraordinary, unrelated to, and ‘dis-

connected from the incline of the gravel at the culvert’’

(R. 448, Appendix A, page 35). Just. plain common sense

tells us that one who is exposed to the perils of fire in the

performance of any duty should be provided with a rea- |

sonably safe avenue of escape. Certainly any prudent’

person would reasonably anticipate that when a train

causes the fire to blow on an employee who is required to |

stand in closé and dangerous proximity to said train that’

_ he might: have to retreat quickly therefrom or else be con-

sumed thereby. The shoulder and pathway were the sama’

to the petitioner as the fire escape on a hotel building is .

to anyone lodged therein. It would be absurd to’say that

the hotel owner does not have to use. ordinary care to main-

tain a fire escape in reasonably safe condition simply be-

cause said owner does jot know when, where or how a fire

will start. — ep a a

“Tt js not the function of | court to search the ree-

ard for conflicting circumstantial evidence in order to -

take the case away from the jury on a theory that the

_ proof gives equal support to inconsistent and’ uncer-

- ° tain inferences. * * * It is the jury, not the court,

which is the fact-finding body.- * *.* The very essencé

of its function is to select from among conflicting

* juferences and conclusions that which it considers

most reasonable. * *.*: That conclusion, whether it.”

relates to negligence, causation or any other factual -

matter, cannot be ignored.’ Courts are’ not free to

reweigh the evidence and set aside the jury .verdict ©

merely: because the jury could have drawn different

inferences or conclusions or because judges feel that

| -other results are more reasonable.’’ Tennant v. Peoria’

& Pekin Union R. Co. (1944), 321 U. S. 29, lc. 35,

64 S. Ct. 409, 88 i. fA. 520, 1. ce. 525.

_B) The state court sae the concept of “proximate

eause” under the Federal Employers’ Liability Act.

“The statute does not attempt to legislate upon the

-purely logical .problem of determining the cause or

causes of injury, but directs its mandate towards the

problem of fixing liability for the injury. Logie may

conclude the injury resulted from the negligence of

the employer, the employce’s own want of care, the

default of a stranger to the employment, an act of

. God, or pare accident, or from a combination of any

or all of these factors. But after logic has thus. de- .

termined the causal basis of the injury, the statute ;

steps in to say that if; among these causes, there is’

negligence on the part of the employer, as that term is

understood in the act, liability of the employer shall

follow, irrespective. of the other factors causally. re-

lated in whole or in part from negligence, even if the

negligence | of the injured employee. or some’ other

factor was logically nearer to, or mare influential in

producing that injury. In the words of Mr. Justice

Holmes: ‘We must look at the situation as a practical

unit, rather than inquire into ‘a purely logical prior-

ity.” The above quotation is from Roberts, “Federal

Liabilities o Carriers” , Sec. 869, as found in Eglsaer

v. Seandrett ct al., Ib1 F. 2d 562, 1. ¢. 565, 566, in which

that court Pitcher states:

The statute ‘‘provides that if the vabeoia s at:

gence ‘in part’ results in the injuries or death, liabil-

ity arises. Under the old concept .of proximate cause,

that cause. must have been” direct, the complete, the

responsible, the efficient. cause of the injury. Con-

fributing’ and remotely related causes were not suf-

ficient. Now, if the negligence of the railroad has

‘eausal relations—if the injury or*death resulted ‘in

part’ from defendant’s negligence, there is liability.’ dg

' “The words ‘in part’ have enlarged the or scope

of proximate causesin these railroad injury ‘cases.

_ These words suggest that there may be a plurality of

causes, each of which is sufficient to permit a jury to

assess a liability. If a cause may ¢reate liability, even

though it be-but.a partial causes it would seem that

such partial cause may be a producer of a later cause.

For instance, the cause may be the first acting cause

which sets in motion the second cause which was the

immediate, the direct cause of the accident.”

We believe that the state court’s conclusion of law and

fact that respondent’s negligence was not the cause ef the

petitioner’s injuries was invalid under the evidence and

“under any defgition of “proximate cause.” Certainly, a

jury of fair-minded men should be permitted to find under

the statute that respondent was negligent and that said

« negligence contributed “in part” to cause the petitioner’s

injuries.

. =~. -

PRAYER.

of Certiorari directed to the Suprdme Court: of Missouri to

the end that the judgment of that cdurt may be reviewed

by this Court and reversed with directions — the judg-

ment of the: trial court be affirmed. -

_ For the reasons herein given, sens prays for a Writ

Respectfully submitted,

MARK D. EAGLETON,

JHOMAS F. EAGLETON,

\ _3746 Grandel Square,

* eererre St. Louis 8, Missouri,

a ' Attorneys for Petitioner.

: ‘

} \ , ~

diction: of courts HAS aAa TTP Re, ania e 2 raserenle: Upp ge ara A |

ore .. INDEX TO APPENDIX. -

| "Page

| Appeals A—Opinion of the Supreme Court of Mis-

| -souri, November 14, 1955.0... de eee ee Wil ils wares 25

peer B-Tadament ciattade rae ats ip ee Ce aas 37.

: Appendix ie iguana s motion to ‘modify ~.

opinion .-.....,..... beeen b eee e nett ene eee aes 38

Appendix D—Respondent’ s motion oe a; rehearing,

‘or, in the alternative, to transfer to thé court en |

We Cov asts sec teak aye 9 We eee nage teva vee ee Soc. NOE

- Appendix E—Order overruling motions ‘‘to modify |

the opinion,”’ ‘‘for a rehearing,”’ or, in the alterna-

tive, to transfer to the court en banc..... Meceecs) (48

Appendix F’—State courts; appeal; certiorari. to ciees SO"

Appendix G—The Federal Employers’ Liability Act. ~ 30-

Appendix. H—Contributory negligence; diminution of , 8

— cs eee rrr ye Vaan cueens Ss eae ai

Appendix. I—Agsumption of ies of employment. . o2

Appendix Pay ON limitations ; concurrent ‘juris-

"APPENDIX A.

* Opition of the Supreme Court ofl Missouri,

th: November 14th, 1955. |

-—— -(R. 439 to 449.)

In the | :

Supreme Court of Missouri, .

‘Division Number One, |

_g — Session, 1955.

Sames € Rogers, -

Pa, 4 Plaintiff- Respondent,

. 'v.

Guy A. Thompson, Trustee, Missoufi |

Pacific Railroad Comgrty, a .Cor- |

poration, : a

Defendant-Appellant J

Appeal _— the Cirenit Court of the City of St. Louis,

Honorable F. E. Williams, Judge. !

: Plaintiff, James C. Rogers, instituted this’ action under

the Federal Employers” Liability Act (45 U. SC. A., §o1

et seq.) for personal injury alleged to have been sustained

by him July 17, 1951, when, during the course of his em- —

ployment, he was burning weeds on defendant’s right of

way near Garner, Arkansas, and fell at one of defendant's

drainage culverts. Plaintiff had verdict and judgment for:

$40,000 damages, and defendant has appealed.

Plaintiff alleged that he, as defendant’s employee, was

engaged in burning weeds by the ube of a hand torch at

a point a short distance north of Gafner Crossing; that in

so doing he was required to work af a place in close prox-

* een

- : >

imity to defendant’s tracks whereon trains were passing;

and that a train caused the fire from the burning weeds to

come so dangerously close to‘him that he was obliged to

retreat and move quickly from the place where he was

working and’ to use as a place of work a part of defend-

ant’s right of way that’ was covered witli loose and slop-

ing gravel: which did not provide adequate and sufficient

- footgng for plaintiff to thus move or work under the cir-

cumstances. Plaintiff further alleged ‘‘that the said °

method of doing said work and the place of work thus -

provided Hecame and were unsafe and dangerous and dez

fendant in thus adopting said method and furnishing said —

place of work, failed to exercise ordinary care and was

guilty. of negligence and by reason thereof, plaintiff was |

caused to fall and to be injured thereby all of which di-

rectly and proximately resulted, in whole or in part, from

the negligence of the defendant as aforesaid.”’ —

Inasmuch as defendant-appellant’ s initial cualentiit is

that plaintiff failed to make outa case submissible to-a

jury and the‘trial court erred ‘in overruling defendant’s<

motion for a directed verdict, we will examine the evi- *

dence tending to support plaintiff’s claim.

Plaintiff, twenty- -four years old when insiiwoil fell arid

was injured at a culvert approximately two hundred fifty.

’ yards north of Garner Crossing, a public crossing over

defendant’s line: At this point defendant’s double-track

line lies in a north-south direction. The tracks, consisting

. of rails and-ties resting on gravel or crushed rock ballast,

are supported by an earthen ‘‘dump.”’

Plaintiff had become the employee of defendant as a sec-

tion laborer May 2%, 1951; and in the morning of July 17,

1951, he with others of the section crew in charge of one

Howdershell as forenian had started working near McRae, '

a short distance south of. Garner Crossing. The section.

men worked until ten- thirty between McRae and Garner

—Zi—

= ©

Crossing, at which time:the foreman directed others ‘of the

crew to do some .work three or four hundred yards north

of. the crossing. However, plaintiff was given the task

-of burning ‘weeds and other vegetation on the shoulder,

and on an area two and a half or three feet wide down

over the crest. of the ‘incline of the dump. Plaintiff was

told to begin just north of the crossing and burri the vege-

- tation up to a point several hundered yards north of the

crossing. The vegetation was dry. It.had been withered ©

and killed: by chemicals. Plaintiff was given a torch con-., .

sisting of a quart container with a spout on one side and a

_- three-foot handle on the other. The spout was stuffed

_ with waste for a wick, and the container was filled with

kerosene and ‘‘white gasoline mix.’’ “Plaintiff had not |

theretofore seen anyone attempt to fire vegetation with that

- sort of device. -He said that normally it is done with a

flame th@wer wherein the operators sit fifteen or twenty

yards ahead of the flame. Flame throwers burn the whole .

right of ww ay. Plaintiff had seen a flame thrower used.

‘Bhis was long before he was employed by defendant. Plain-

tiff does not know what the section crew’s duty was when

the flame thrower was used. (Defondant’s foreman testi-

fied a machine had been used as a flame thrower in burn-

_ing weeds from 1928 or 1929 to early. 1950. The machine

caused too much fire.. It burned hay, pasture and woodland

on properties adjoining the right of way. The section men

had to follow along and fight fire. The machine was lgter

converted into a sprayer te kill weeds and after they are. .

kiled,.the seagion. men burn them. They use a torch or

‘‘something that is handy.’? They now have less fire and

fire fighting.) | :

Pursyant to instructions, plaintiff had fired the weeds,

‘‘just spots,’’ along the west shoulder and ‘west side of the

incline up to a point thirty or thirty-five yards south of

the drainage culvert when a train came from the south on .

‘the east. (northbound) —-

y —s2d—

In firing the weeds, plaintiff had been walking two and

a. half or threg feet from the west ends of the ties support-

ing the rails of the west (southbound) track. There is

‘a flat place, ‘‘a path,’’ along there—a shoulder three to

three and a half feet wide—between the edge of the sill

ing oe and the crest of the dump. | a see

Having heard the train whistle for the crossing and hav-

ing ‘seen that the train was on“the east track, plaintiff

quit firing the weeds, set the torch on a'tie west of the west

rail of the west track and ran northwardly to a point

“‘right next’’ to the culvert. He knew the culvert was

there. He had noticed it when he ‘‘was running north.’’ . |

_ But_he paid no attention to it. He had forgotten it at the

tia And, ignoring the fire, plaintiff directed his attention

**wind come along behind’’ a passing train; but, there being

- a track between the fire and the train, he ‘‘didn’t think , :

the wind would affect it too much.’’ Plaintiff explained

~ how. he was injured as follows: ‘fAt the time I thought

I was far enough away, that I was plenty far ehough to

clear myself of the fire or any danger of the fire and it

was time to start to watch these journals. So, I set my

torch down on the end of the tie, and was standing out on

the Hat surface, watching the train go by. After the train

had gotten approximately half or. two-thirds of the way:

passing’ train. Plaintiff knew there would be a

back, I felt this heat on my face, on the. side of my face.

I turned to see.what had happened, and it was fire right up )

_ in my face. I threw my left arm over my face and started

' turning to the west, to the north, backing away rapidly

from the fire, and that is when I walked i in on this culvert

and slipped and fell.’

Plaintiff further testified his foreman had instructed that

; ° ®, oa

when trains approached the sectionmen* were to ‘‘get

clear of what we were doing “and stand and watch the ©

trains go by for hot bexes. ... . He (the foreman) said .

at all times he wanted some of (the) -rmen on one side of

the track ang some on the other.’’ The foreman had also

said, ‘‘‘Don’t stand even on, the end of the ties or “close

_to the oth ‘da while there is a train on the, opposite rail, °

- because 1 9 eset the sound .of one train would

he sound of another one that possibly’ would come —

e other way.’ ’’ The foreman had said to ‘ ‘always

on Ahe shoulder.’ ” Plaintiff testified there was no

Fface or walkway over the top of the culvert where

he was injured. A flat pathway on the shoulder including

» ends of culverts was ‘‘supposed to be’’ kept free of

" ballast, so ‘‘the men would have a safe place to walk.’’

_ He said that ‘‘normally’’ there is a flat place two or two-

. ‘and’ one-half feet on which to wa’ across a culvért; on

this one there’ was nothing but crushed rock—no flat sur-

face. ‘It (the ballast) rolled out from under me.’’ Vibra-

tion of trains had shaken crushed rock down ‘onto the/S

culvert so as to make a sloping incline),

Plaintiff, on cross-examination, testified that, when the ~

foreman told him and others of the section, crew to sus-

pend their labors when a train approached and watch for

hot journal. boxes,.he did: not understand that he, plain-

tiff, when burning weeds, was to completely ignore the.

fire. Plaintiff ‘‘never thought he (the foreman) meant

anything like that.” Plaintiff said he knew it. was his ey

primary duty to watch the are.

Plaintiff, on cross- examination, further testified as fol-.

lows, ‘‘Q. When you slipped, you say the gravel slipped. °

‘out from underneath yout A. Yes. Q. This is that por- -

tion of the gravel that is right. up next ‘to the ties, isn’t.

it? A. Yes, sir. Q. There is gravel right up next to those

ties everywhere along the railroad, isn’t there? A. Yes,

Q. That is the proper way, I believe, that a railroad:

i ‘built so far as you know, isn’t it!” A. Yes. . . . Q. You

say the section gang keeps a path there for themselves to

walk on? A. It is there, yes, sir. Q.. ‘On’ both sides of the -

right-of'way? A. Yes, that’s right. Q. Every place on the

railroad you have been? A. No, sir, not every plaee. Q.

Well, all along the right-of-way on that section you worked.

on? A. Yes, there is a flat surface of dirt other than where

the culverts are. Q. Other than where the culverts are?,:

A. Yes. Q. So anytime ‘you come to'a culvert. there isn’t

any. Is that right? A. There is not a dirt, flat surface.

Q. At any culvert? A. To a certain extent; I: mean not

: like a shoulder is.’’ - hs eee ae

Defendant’ s foreman testified ey + generally speak-

ing,” there is a’ shoulder eigxhteen inches to three or four

feet wide along the outer edge of the ballast. ‘There i is no

- ballast on the shoulder unless ‘‘there would be loose rock

kicked out. . . . We clean it up if we have a slide.” The

section men ‘keep. the ballast “ined u up (approximately) .

straight. te

» As stated, per eo FCP contends the trial anak

erred in overruling defendant’s motion for a dirécted ver- °

dict. It is said there was no proof that an accident and

injury could have been reasonably foreseen from the man- P

ner in which the drainage culvert was constructed. and

- maintained; and there was no evidence that plaintiff’s

alleged injury was proximately caused by the method e

adopted by the defendant ig burning the weeds or that

such an injury or other danger could have been reasonably

foreseen i in the method used by defendant...

As to the issue of negligence—the facts in the instant

case are not like those in Bailey v. Central Vermont Ry.,.

319 U. S. 350, 63 S. Ct. 1062, cited by plaintiff-respondent,

wherein the employee was ordered to work at a particular

place where there was a narrow footing and »o guardrail

on a bridge eighteen feet above the grown, and the |

wrench he was required to use, unless disengaged when P

the doors of a hopper car were opening, was likely to spin

atl

mung”

F a ; ee

| with the shaft of the hopper and throw the employee off

balance. Defendant was not “absolved from its continuing

duty to provide the employee with a reasonably safe place

to work by the fact that the work there required was |

“ fleeting or infrequent. The natore of the task which the.

employee undertook, : the -hazards which it entailed, the -

effort which it required, the kind of footing he had, the:

space in which he could stand, the absence of a guardrail,

the height of the bridge above the ground, the fact that. the

ear. could have been opened or unloaded near the bridge

on. level ground—all these were facts and cireumstances

~ for the jury to weigh and. appraise in determining whether

the employer, in furnishing the, employee with that par-

ticular place in which to perform the task was negligent.

Nor are the facts of the instant case like those ‘in Kelso v.

. W. A. Ross Const. Co., 337 Mo. 202, 85 S. W. 2d 527,

wherein the employee was required: to: work alternately

between the tép.of a rock pile where he was. safe, and —

on the ground by the rock pile in the performance of

duties which distracted his attention from the danger of

trucks passing or backing through or into his place of — |

work, and no warning was given or other precaution taken.

to protect him from the danger. In Tatum v. Gulf, M. &

0. R. Co., 359 Mo. 709; 223 S. W. 2d 418, cited ky: plaintiff-

respondent, there,was no catwalk, platform or g ardrail on

a trestle so as to guard trainmen against the danger of .

falling to a creek thirty-fotr feet below. . In Luthy v. Ter-

minal R. Ass’n of St. Louis, Mo. Sup., 243 S. W. 2d 332,

there was no light at plaintiff’s place of work, and plaintiff

_ working in the dark fell over a black switch mechanism

when attempting to board a car. | a .

As to the issue of causal connection—the mere. 2. fact that

injury follows negligence does not necessarily create lia-

bility—causal connection between’ negligence and injury |

is*necessary. The test of whether there is ‘causal connec-

“tion is that, absent the. negligent act the i injury would not

a s —

aor — 32— iif

‘

haye occurred. ‘Moreover, . in, order that negligence be

actionable, there must not only be caustt connection so

that the injury would net have occurred but fo’ the negli-

gence, but such . negligence. must also be a proximate

(legal) cause of the injury. “Foreseeability, of injury is

sometimes employed as a test of proximate cause; but: if

' it reasonably could have been foreseen or ‘anticipated that

an act of commission or omission was likely to injure some-

one, then it makes no difference that the manner in which

the act did injure someone might not have been foreseen

or anticipated and the actor may be held liable for any

injury which, after the occurrence, appears to have been

a natural and probable consequence of his act: Kimberling

v. Wabash R. Co., 337 Mo. 702, 85 S. W. 2d 736; Annin v.

. Jackson, 340 Mo. 337 100 S. W. 2d 872; Pedigo v. Rose-

herry, 340 Mo, 724, 11S. W. 2d 600; Mrazek v. Dersiinel

... R. Ass’n of St. Louis, 341 Mo. 1054, 111 S. W. 2d 26; Gray |

v. Kurn, 345 Mo. 1027, 137 S. W. 2d 558; Rose v. Thompson,

346 Mo. 395, 141 S. W. 2d 824; Fassi v. Schuler, 349 Mo.

* 160, 159 S.-W. 2d 774; irdient y. Security Nat. Bank

' Savings & Trust Co., Mo. Sup., 175 S. W. 2d 797; Bran-

‘ stetter v. Gerdeman, Mo. Sup., 274 S. W. 2d 240,

. The principle of the essentiality of proximate causatign.

hes been recognized by the Supreme Court of the United

wigee * in Federal Employers’ Liability Act cases. . Tiller —

. Atlantic Coast Line R. Co., 318 U. 8.54, 63 S.. Ct. ae |

Brady Vv. Southern R. Co., 320 U. S. 476, 64 S. Ct. 23

Reynohls v. Atlantic Coast Line R. Co.,:336 U. S. 207, 69

S. Ct. 007. As pointed out in Luthy v. Termine} R. Ass’n «

of St, Louis, supra, Mo: Sup., 243 S. W. 2d 332, the Brady

_.ease (a five to four holding) involved facts arising prior

to the 1939 amendment to the Federal Employers’ Liability

Act. However; the 1939 amendment did not affect ‘the rule.

that liability must be based on negligence—a- proximaté

cause of the injury. In, Tiller v. Atlantic Coast Line R.

Co., supra, the court held that the Act ang: its amendment

— 93 —:

of 1939 abolished the post—Priestly v. Fowler. defenses

(the fellow servant—assumption of risk:rule) and author-

‘ized comparison of negligence instead of barring the em-

ployee from all recovery because of contributory negli-

gence. ‘But the Act and the amendment “leave for prac.

tical purposes only the ‘question whether the earrier was

negligent and whether that negligence was the proximate

cause. of the injury.” (Our emphasis. )

In the Brady ease, plaintiff's decedent, assisting in a

switching movement, was thrown from the step of a gon-~

dola car to instant death when the trucks of the car hit—

“the wrong end” of a closed derailer on.the east rail of the

switch track. The opposite (west) rail of the switch track.

was defective,. The west rail was so worn on the top and :

sides that: experts were of the opinion it permitted the

thrust of the east wheels of the trucks, as they rose over —

_ “the wrong end” of the derailer, tc foree the flange on the

west wheels over the defective ‘rai and so to derail the

cars, When-no such derailment w ould have ‘occurred, “ ‘nine

times out of ten, if the best type’” rail. was in use. The. °

misuse of the derailer Was an act of negligence, but it was

‘mere speculation as. to whether that negligence was charge-.

- able to decedent or another. Plaintiff, therefore, could not

recover on the theory that defendant was: naalletat ‘in

setting the derailer without warning decedent. As to.neg- | '

ligence in using a defective rail—the rail waasufficient for

ordinary-use, and defendant was not obliged to foresee or

guard against misuse of the derailer, although a witness

with years of experience as a brakeman recalled instances

when trains were improperly backed over a closed derailer.

The Supreme Court of the United States was of the opinion

that the misuse of the derailer was entirely disconnected

from: the earlier act of defendant in placing the weak rail

in the track. The unsound rail was not a pfoximate cause

- of the accident. The mere fact that with a sound rail. the

accident would not have happened was not enough.

oe Seen /

"In our case, plaintiff’s téstimony leaves much’ unsaid as

to the actual condition at the west end of defendant’s

drainage culvert, and as to the place where defendant was:

stepping when he fell. Plaintiff’s testimony at best tends

to show the fact that generally there was a level shoulder .

between the edge of the ballast and the crest of the dump

supporting defendant’s tracks. This level shoulder was

supposed to be kept there so that section men might have

a safe place to walk when working... There were flat sur-

faces across the ends of culverts, but not “like” the shoul-

we fers were. Considered from a standpoint most favorable .

- ,* to plaintiff, it reasonably could be said the flat surface

across: the west end of the culvert in question was narrower

than elsewhere along the shoulder, and the vffration of.

trains had loosened and shaken ‘down some gravel or

crushed rock so as*to mgke an. inclined surface down to. or

near the end of the culvert. : Plaintiff's testimony, which

we have quoted in question and answer form, supra, was

support for a conclusion that plaintiff slipped on gravel

“right up next to the ties” ; however, at another time while -

testifying, plaintiff said, “I didn’t back up east, next to the

rails.” the so, the condition of.the culvert was ‘not shown

to have/been unsafe for workmen in ther oi dinary use of

os the area in maintaining the tracks, including the firin

'.* and attending the firing of “spots” of weeds along the

_ shoulder and incline of the dump. Can it be correctly said

. that a_reasonably careful’ and prudent person’ would as- 7

‘sume that loose gravel or crushed rock, shifted down on

the shoulder at the culvert -by the vibration of trains, -

would subject,section men tq an unreasonable hazard, ac-

customed as section men. are to moving over tracks, ties

and ballast in their multiple duties i in the maintenance of —

the line? It is established that the standard of care must

be commenstrate to the dangers of the business. Less

diligence is required where thé danger is slight than where

great. Frizzell v. Wabash R: Co., 8 Cir., 199 F. 24 153. It

— hh) —

is true plaintiff was confronted by an emergency, in a

sense; but, as we shall see, it was an emergency brought

about by himself. _ |

Nor was there evidence tending to show that the use

of the hand torch (in itself) was an unsafe method or a

more dangerdus method than any other in lyrning weeds.

See and compare Fore v. Southern Ry. Co., 4 Cir., 178 F.

2d 349. Of course, it could be asserted that fire itself is a

liazard. But it is not contended that defendant was negli-

gent in starting a fire, And the use of the hand torch in

_ firing tlfe weeds did not make the fire dangerous. Defend-

‘ant did not.start a fire on its right of: way and abandon

caused by passing trains. . Defendant had detailed plain-.

tiff to fire the weeds; and, according to his testimony,

plaintiff knew it was his primary duty to watch the fire:

It seems to us that the fire—unattended and unwatched

as it was—swept northwardly by the wind of the passing

train toward defendant’s culvert so that plaintiff (who had -

' left the fire unattended) was obliged to move blindly away

and fall, was something extraortinary, unrelated to, and

disconnected from the incline of the gravel at the culvert.

And now, after the event, we are obliged to say we think

plaintiff’s injury was not the natural and probable conse-

‘quence of any negligewce of defendant. And if there was .

negligence in failing to maintain a sufficiently wide path

across the culvert or in permitting that path to become

covered with crushed rock or gravel, still plaintiff’s evi-

dence is completely lacking in probative facts supporting

cols th defendant’s. negligence, in whole or in °

’ part, contributed to plaintiff's injury. Brady v. Squthern

R. Co., supra, 320 U. S. 476, 64 S. Ct. 232; Atlantic Coast . ~

’ Line R. Co. v. Andersen, 5 Cir., 221 F. 2d 548; Chesapeake

& O. Ry. Co. v. Burton, 4 Cir., 217 F. 2d 471; Gill v.Penn- -

sylvania R. Co., 3 Cir., 201 F. 2d 718; Fore v. Southern Ry.

—36—

. > .

_ Co., supra, 178 F. 2d 349; Wolfe v: Henwood, 8 Cir., 162 F.

24 998; Seaboard Air Line R. Co. v. Gentry, Fla. 46: So. 24

_ 485; Restatement,. Torts, § 433. >

The judgment noun he ini

Teds ordered,” ‘Sa re

an ‘ ~ Paul Van Osdol, '

ah Commissioner., _

Coil, C., concurs. are, a em

Holman, Cc. concurs.

Per Curiam: The foregoing opinion by Van Osdol, Cis ‘

‘adopted as the opinion of the court. All of the judges a

concur. = , . iid j

C_ : :

—_ gan

/ APPENDIX B. ») iq

‘Judgment.

Entered November 14th, 1955 (R. 437-438).

James C. Rogers, . : Respondent,

Vs. Appeal from the Cirenit Court of the City of

' “St. Louis, ;

Guy A. Thompson, Trustee, iiidak ae

Pacific Railroad _Company, a cor- Pe ete

~ Now. at this day come again the parties aforesaid, by

their respective attorneys, and the Court here being now

sufficiently advised of and concerning the. premises, doth

consider and adjudge that the judgment aforesaid, in form

aforesaid, by the -said Cireuit Court of the City of St.

Louis rendered, be reversed, annulled and for naught héld »

and\ esteemed, and that the said appellant be restored to. |

all things which he has lost by reason of the said judg-

ment; and tliat the said appellant recover against the said

respondent his costs and charges herein expended, and

have execution therefor.

\ aa

Le.

—> 38 —

‘APPENDIX.C.

Filed November 28th, 1955.

(R. 449 to 453.)

In the

Supreme Court of Missouri,

“ Division No. 1.

September Session, 1955.

James C. Rogers,

ie j Plaintiff-Réspondent, ‘

& ° : : : ;

vs. |

y. ran &

; Guy A, Thompson, Trustee, Missouri No. 44,595. ee

~ Pacifi¢ Railrodd Company, a Corpo- |. : 7

ration, — ye

Defe ant-Appellant. . .

Appeal from ‘the Circuit Court of the City of St. Louis, a

~..— Honorable F. E. Williams, Judge.

| iia Motion to Modify the Opinion.

o : ° A. ; 7 ; ” ‘, e ,

Comes now James C. Rogers, Respondent, and moves the

Court to modify its Opinion filed herein on the 14th day of

November, 1955. At page 4 of its Opinion, the Court

quotes: a part of plaintiff’s testimony dealing with plain-

tiff’s conduct in watching the passing train as follows.

‘“‘After the train. had gotten approximaely half or two-

thirds of the way back, I felt this heat on. my face, on

the side of my face.’’ - At no place in the Opinion does it |

refer to plaintiff’s further testimony that only 2 to 3 sec- |

7 ?

— 39 —

-onds - time * was consumed in watohing the passing train,

although the record is explicit on that phase of the case.

The testimony which Respondent moves the Court to in-

clude in its Opinion by quotation or summary is as follows: ;

.“*Q. How long was it you were in that. position be-

fore you felt this flame or the burning precess, how

. many cars had gone wel A. Appreenty _ or

four.

‘t Q. About how fast’ weal you say that iin was

- moving? A. I would say thirty-five or forty miles an |

hour. It wasa rapid ies: is eee ania prvetiot T.

181.)

For grounds of this motion emsasitian states: The

Court’s Opinion makes the length of time plaintiff directed

his attention to’ the passing train, thus leaving the fire

‘‘unattended and unwatched’’ (Opinion, p. 10), a pivotal

fact.: As to this fact the language presently. employed in

_ does not give a complete or Accurate account

the factual situation, nor permit fair eyaluation of plain-

tiffs conduct, -The testimony which Respondent moves

the Court to include in its Opinion by quotation or sum-

mary is the only evidence in the case which does show the

length of time plaintiff watched the /passing train before

being caught by the flames. ‘Such testimony should,

therefore, be included in the ( ew ac: either by quotation

_ or summary. 3

B. a

6 ¢ Per i

Respondent further requests the Court ‘to modify its

pinion by quoting or summarizing the record: facts with. -

reference to the duties plaintiff was réquired to perform at *

- the time he was injured. The Opinion now singles out |

-plaintiff’s duty to attend the fire, but does not make any

reference to the fact that at the very time of injury an-

other duty was Seaposed by defendant upon plaintiff to

-« -- -—-- oe -- —- - * -—_—— -— -—-

_ --

‘put down. e¥erything we were doing, get clear of what we

were doing and stand and watch the trains gé by for hot

boxes.”’ (T. 20-21, 88-90.)

For grounds for said motion, Respondent states: The

Court in its Opinion completely overlooks the above testi-

mony which we helieve is pregnant with significance.. This

testimony demonstrates that the task of watching the

passing trains for hot ‘boxes was not voluntarily assumed

by plaintiff, nor was it self-created. It was imposed ‘upon —

him by defendant. If the performance of it increased plain-.-

_ tiff’s peril thié-Court holds that it did), then the very im-_

position of it made defendant’s method of doing this work

~~ unsafe and ‘dangerous, and it is one of the very. important

elements of plaintiff’s right ‘to recover. Furthermore, it

was one of the facts and’ circumstatices to be weighed and

appraised by a jury. bales :

For the foregoing reasdag, Dependent tiapanbeiny'-

moves the Court to modify its Opinion as above indicated.

ee ii

' Mark D. Eagleton, ~ Danes

- Thomas F. Eagleton and —

Leland Jones, — “ YR

| ae ie 3746 Grandel Square, .

ee [*¢ St. Louis 8, Missouri,

| in ed _ Attorneys for‘Respondent.

res]

, . ° ¥, ‘

. P ~~

5 Fi eh nh = wn RE REPOS Se es eh eR

¢ .

P mA

Lint Ame a es

saci ia

APPENDIX D. .:

| se hal asth, 1955.

(B.453 to 460.)

“Inthe. |

Supreme Court of Missouri,

Division No. 1.

ticssamanee Session fo ed

Pint sponte

’

J ames C. Rogers,

vs. -

Guy A. Thompson, Trustee, Missouri’ on ee

Pacific Railroad Company, a Cor- I" |

poration, a =

Defendant-Appellant. ;

Appeat from the-Cireuit Court of the City of St. Louis,

Honorable F. E. Williams, Judge.

; Respondent’ s Motion for a Rehearing, or, in the Alterna-

tive, to Transfer to the Court En Banc.

Comes now James C, Rogers, Respondent in the above-

entitled cause, and moves -the Court ‘to set,aside its -Opin- -

ion, decision and ‘Judgment, rendered herein on the 1

day of November, 1955, and 'to grant Respondent a rehear-

ing herein, or, in the alternative, to transfer this case to

the Court en- bance.

For grounds of these motions, Respondent wanaitidie

states that material matters of law and fact.in this case

were overlooked and misinterpreted by the Court as shown

by its Opinion previously | filed herein. Such matters of

| Jaw and fact are as follows:

The Court through a misunderstanding of tlre evidence .

has reached ‘the erroneous conclusion that plaintiff was

injured as a result of “‘an emergency brought about by

himself’’ (Opinion, .p. 9) in leaving the fire ‘‘unattended

and unwatched’’ (Opinion, p. 10). All thesevidence on the

point shows that plaintiff, while performing his duty of

watching the passing train for hot boxes, looked away

from the fire for only two or three seconds before he was

overtaken by the flames. Defendant, apparently in recog-

nition of thig.testimony, did not request the Court to give |

any instructions submitting to the, jury the issue of

whether or ‘not plaintiff was negligent in failing to attend -

or watch the fire under these circumstances, although dle-

féndant did request and was granted a sole cause instruc-

tion dealing with plaintiff’s alleged failure to guard prop-

erly his footsteps while oiivine from the fire (see Defend-

ant’s Instruction No. 2, T"921-422). The -Court through

this misunderstanding has decided this whole case on an

‘issue not warranted by the facts and not submitted by de-

fendant. | «

II.

The Court through a misunderstanding of the evidence.

has reached the erroneous conclusion that plaintiff was in-

_jured as a result of ‘‘an emergency brought about by him-.

self’? (Opinion, p. 9) in leaving the fire “‘unattended and .

unwatched’’ (Opinion, p..10). 5 eae be

_ It was defendant who imposed the duty upon plaintiff t to

watch the passing trains for hot boxes. :This was not a

duty voluntarily assumed by plaintiff, nor was it self-

created. If the performance of it increased plaintiff’s :

peril (the Court holds that it ‘did), then the very imposi-

tion of it made defendant’s method of doing this work an

improper.one, and it is one of the very important elements

. of plaintiff’s right to recover. Under Point VE herein, we

ot ree lala ae

aN neha okt & ela

bree Gackenphesry bbe

. The Court. wrongfully assumed that

on. aaa

enumerate the six elements which made’ the method of

work adopted by defendant an unsafe and dangerous

- niethod, and the imposition of this duty is one of the elé-

. ments. stressed therein. It secins incongruous to us that

— defendant can demand of plaintiff that he temporarily

divert his attention to another task for as much ds two

or three seconds and that he can thereafter be condemned

for obeying the very ; instructions given him ties defendant.

TIL | |

The Court misinterpreted and ° pe re Oe the length

of time plaintiff directed his attention to the passing train.

Be SY left the fire

‘unattended and unwatched’’ for a substantial period of

time. This assumption is contrary to all the evidence in

the case. Plaintiff’s uncontradicted evidence is that only

‘three or four cars of the train (T. 181), that is, one-half or

_ two-thirds of the train (T. 23), passed him before he was

overtaken by the flames. Since the train was moving 35

to 40 miles per hour (T. 181), a fact also proved by the un-

contradicted evidence, it necessarily follows that plaintiff

could not have directed his attention to the passing train —

for more than two or three seconds before the fire reached

him... - é ae Be

The erroneous assumption of fact that plaintiff left the

fire “‘unattended and unwatched’’ (Opinion, p. 10) fora |

substantial period of time is material. It is upon that

erroneous assumption that the Court concluded that plain.

_ tiff faced an emergency ‘‘brought about by himself’’

_ (Opinion, p. 9) and, therefore, not the result of defendant’s

negligence.

The Court misinterpreted and misconstrued the nature

_efplaintiff’s duties: (1) to inspect the passing train for

‘overheated journal boxes and (2) ‘to tend the fire then set

~~ mae

on the shoulder. The Upinion of the Court, in reciting

that ‘plaintiff knew if was his primary duty to.w atch thé

the duty to watch the fire was then and there more im-

portant than the duty to watch the passing train. Such a

'. meaning cannot fairly be given to the testimony. of plain-

. tiff, who stated that defendant had issued standing’ orders |

to all section hands, including plaintiff, to drop whatever

. they might be doing whenever a train passed in order to

_ inspect such trains for overheated journal boxes (T. 20-21,

88-90). Plaintiff's testimony was uncontradicted even

though one of the witnesses for defendant was its foreman,

from whom plaintiff said he had ‘received the standing

orders! : ale < Pha

_ The testimony of plaintiff is uncontradicted as to the

nature of the two duties he had to perform in the same

. interval of timé... He had either to watch the fire or to

watch the train during: this interval. He ran to a ‘point

of apparent safety in order to perform. the duty imposed —

on him by defendant, to-wit, watching the train for hot

boxes. While the duty of attending the fire. may have

been primary, it was in no sense exclusive. Both duties’

were highly important. ‘The nature of the instructions -

given him by the foreman ‘‘to put down everything we:

were doing, get clear of what we were doing and stand

and watch the trains go by for hot boxes’’ (T. 20-21) must

_ be considered in order to evaluate properly. plaintiff’s con-

duct. Cértainly reasonable minds could differ on this

issue. Therefore, it was, the province of the jury to weigh -

and appraise these facts, not as a matter of hindsight, but

under the cireumstafices present at the time plaintiff was

trying to carry out both sets of instructions which were

conflicting i in their very nature.

aaa he Pre Sisto iat

- : . °

; . . V oe

: . , °

| ‘

‘

The Court’s conelysion of law and fact that defendant’s

negligence, if any, was not the prox imate cause of plain- -

tiff’s injuries was invalid. Jt was ‘based upon the mis-

interpretations and misconstructions of fact: set out in

Sections I and IT preceding. The Opition held that the . *

emergéncy which caused plaintiff's “injuries was of the

plaintiff’ s own making. Since, however, the uncontra-

dicted evidence proves that plaintiff was obeying the in-.

‘structions of deferidant during the two or three second

interval he directed his attention to the passing train, it

follows that the Qpixion is demonstrably incorrect. This

error. was an integral part of the holding; it is obvious that

the error, was material.

1 5

The Court overlooked a theory and the law relied upon |

by plaintiff in both the trial and the appellate courts.

In its Opinion, the Court -considered the method of work

furnished -plaintiff as limited to ‘“‘the use of the hand

torch. (in itself)’ (Opinion, pp. 9-10). It is apparent from

the Opinion that the Court mistakenly understood plain-

tiff’s contention to be that the method of work was danger-

ous because, and only because, the firing was done by

means of a hand torch.

‘were overlooked in the Opinion, dre that defendant's

method of work was-comprised of the several following

factors: (1) that plaintiff was required to burn weeds |

which had previously been chemically prepared. so that:

they would ignite rapidly; (2) that plaintiff was furnished

a hand torch to ignite the weeds, and the physical limita-> —

‘tion of the hand torch required the plaintiff to be in close.

_ proximity (within six feet) of the flame; (3) that plain-

tiff was required to burn the weeds in such close préximity —

ate dae P M

eo «6 —_ o- e#*e ome «€ a = 2... _ =. >

ee, A

°:-.v

to defendant’s tracks that air disturbance from trains pass-

ing at 35:to 40 mile’ per hour would blow the fire toward

plaintiff; (4) that nnder the circumstances defendant did:

in fact operate its train at a speed of from 35 to 40 miles.

per hour and “did cause the fire to blow toward plain-

tiff; (5) that defendant did not provide plaintiff with a_

path’ or other means adequate for escape from the fire; _

(6) that under all of these.circumstances defendant. con-

« tinued to impose the duty upon cages of inspecting and

- watching the passing trains for hot boxes.

In overlooking plaintiff’s theory and the law, the Court

committed a material error by simply holding that there —

was no evidence ‘the use of the hand torch (in itself) was

an unsafe method or a more dangerous method. than any

other in burning weeds.’? The Court thereby disposes

of the entire case on the basis of this one element alone,

and thus it has failed to consider the other five elements

above set forth upon which pla‘: tiff relies for recovery.

. <a.

WEle is

The Court ta siembialt and failed to apply rane

the principles of law in the case-of Bailey v. Central of Ver-.

mont Ry.,-319 U. S. 350,63 S. Ct. 1062.° The error is

material, since’ the’ Bailey.’ case, decided by the Supreme

- Court of the United States and controlling upon this

Court, clearly holds that the facts and circumstances such

as here involved are to sl and appraised by the

‘sai as He |

VHt. FS

The Court ‘hilalsiaiaha and misconstrued the case of |

‘Keiao v, W. A: Ross Const, Co., 337 Mo. 202, 85'S. W. 2d _

927. In discussing the Kelso case, the Opinion overlooked -

the law of that case. ‘The Kelso case@ld. that the safety

of the method of work cannot be judged apart from the

place of. work and that the safety. of the ‘place of work

—w-

cannot be judged apart from the method of work. This

error is material because -the Court in the case at bar

attempted to judge the adequacy of one of the elements

of the method of work without relating it to the place of:-

work and attempted to judge the adequacy of-one of the

elements /of the place of work without reference to the

method or kind of work in progress.

For the foregoing reasons, Respondent respectfully

prays the Court to set aside its Opinion, decision and

judgment. rendered herein on the 14th day of November,

1955, and to. grant Respondent a rehearing, or, in the

alternative, to transfer this case to the Court en bane.

Respectfully submitted,

Mark D. Eagk ton,

Thomas F. Eagleton seal

Leland Jones,

3746 Grande! Square,

St. Louis 8, Missouri,

- Attorneys for Respondent.

act

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APPENDIX /E, ee

- Order Overruling Motions “9 Modify the Opinion,” “a :

a Rehearing, or, in the Alternative to. Transfer to *

the Court en Banc.’’

Entered December ‘12th, 1955 (R. 476),

\ . And iesaliee and on:the 12th day of : December, 1955,

the following further proceedings were had ‘and entered of \

record in said cause, to-wit:

he ‘ ‘ aids

James C. Rogers, , |

4 i Respondent, :

vs. No. 44,595. _?

Guy A. Thompson, Trustee, Missouri Pacific Railroad Com-

pany, a Corporation, , .

wens

—

AA SI STR ARDS Rte DAA VARS try a A a UIE

Now at*this day, the Court having seen and fully con-

sidered the motions of the respondent for modification of

~ the opinion in the above entitled cause and for a rehearing

herein or, in the alternative, to.transfer sdid cause to the

Court en Banc, doth order that said motions ”. and the

same are hereby overruled.

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APPENDIXF.. |

ia Courts; Appeal; “Certiorari-’

Final judgments or ae: a rendered by the highest

court of a State in which a decision could be had; may: be

reviewed by the Supreme Court as follows: "> ~ -

(1) By appeal, where is drawn in question the validity —

of a treaty or statute of the United States and the decision |

is against :its validity. ,

(2) By appeal, where is drawn in‘ Pe aa the validity -

of a statute of any state on the ground of its being re-:

pugnant to the Constitution, treaties or laws of the United |

States, and the decision is — of its validity. .

(3) By writ of certiorari, the validity of a treaty

or statgte of the United States is drawn in question on the _

ground of its being repugnant to. the Constitution, treaties .

or laws of the United States, or where ‘any title, right;

privilege or immunity is specially set up or claimed under

the Constitution, trdaties or statutes of, or commission held

’ or authority exerciscd-under, the United States. June 25,

1948; c. 646, 62 Stat. 929, 28 U. S. Code, See. 1257.

— 50 —

APPENDIX .

* The Fedéral Employ + Lisbility J Act.

Every common carrier by railroad ‘while engaging in

commerce between any of the several States or- Territories,

or between, any of the States and Territories, or between

- the District of Columbia and any of the.States or Terri-

tories, or between the District of Columbia or any of the

_States or Territories and any foreign nation or nations,

shall be liable in damages to any person suffering injury

while he is employed by. such carrier in such commerce, or, —

in case of the death of such employee, to his or her per- :

sonal representative, for the benefit of the surviving widow

or husband and children of such employee; and, if none,-

then of such employee’s parents; and, if none, then of the

- next. of kin dependent upon ‘such: employee, for such in-

jury or death resulting in whole or in part from the negli-

geiice of any of. the officers, agents’ or employees of suth .

carrier, or by reason of any defect or insufficiency, due to

its: negligence, in its cars, engines, appliances, machinery, |

_ track, roadbed, works, boats, wharves, or other equipment.

Any employee of a carrier, any part of whose duties as

such employee shall be the furtherance of interstate or

~ foreign commerde;.or shall, in any way directly or closely

and substantially, affect such Yommerce as above set forth

shall, for the purposes of ral chapter, be considered af

being employed by such carrier in such commerce and shall

_ be considered as entitled to the. benefits ofthis chapter. -

April 22, 1908, c. 149, Sec. 1, 35 Stat. 65; Aug. 11, 1939, e.

685, Sec. 1, 53 Stat. 1404; 45 U. S. Code, Sée. 54.

an.

_ APPEN DIX H.

Contributory Negligence; Diminution of ‘Damages.

In all actions hereafter brought against any such com- :

_ Mon carrier by railroad under or by virtue of any of the

provisions of this chapter to recover damages for personal.

injuries to'an employee, or where such injuries have re-—

sulted in his death, the fact that the employee may have

_ been guilty of contributory negligence shall not bar a re-

_ covery, but the damages shall be diminshed by the jury .

in proportion to the amount of negligence attributable to

such employee: Provided, That no such employee who may

be injured or. killed shall ‘be held to have been guilty of

contributory. negligence j in any- case where the violation by

such common carrier of any statute enacted for the safety

of employees contributed to the injury or death of such

employee. April 22, 1908, ¢. 149, Sec. 3, 35 Stat. 66; 45—

mm Code, nate 53.

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APPENDIX hen

” jetta of Risks of Employment,

In any action brought against any common carrier’ un-

der or by virtue of any of the provisions of this chapter

_to recover damages for injuries to, or the death of, any of

‘its employees, such employee shall. not be. held to have

assumed the risks of .his employnient in any .case where

such injury or death resulted in whole or in part)from the

negligence of any of the officers, agents, or employees of

. such ‘carrier; and no employee shall be’ held to have as-

~ sunied the risks of his employment in any case‘where the

violation by: ‘such common carrier of any statute enacted

_ for the ~safety ‘of employees contributed to the jajury or

~ death of such employee. April 22, 1908, ¢. 149, See. 4, : |

Stat.’ 66; Aug. ‘11, 1939, ce. 685, See. 1, 53 Stat. 1404;

U.S. Cos , See, 54.. :

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APPENDIX J.

Actions; Limitations; Concurrent J urisdiction of. Courts.

No action shall be maintained under. this chapter unless

_ commenced within three years from the day. the cause of —

action accrued.

: 7 *

Under this chapter an action may, be brought in a dis-

trict court of the United States, in the district of the resi-

dence of the defendant, or in\which the cause of action

arose, or in which the defendant shall be doing business at -

the time of commencitig such action. The jurisdictionjof

‘the courts of the United States under this chapter “pn

be concurrent with that of the courts of-the several St

April 22,.1908, ¢. 149, See. 6, 35 Stat. 66; Apr. 5, 1910,’ e.

143, Sec. 1, 36 Stat. 291; Mar. 3, 1911, ¢. 231, Sec. 291, 36

Stat. 1167; Aug. 11, 1939, c. 685, Sec. 2, 53 Stat. 1404; June '

"95, 1948, c. 646, See. 18, 62 Stat. 989; 45 U. S. Code, See. 56:

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.