Petition for Writ of Certiorari — Gallick v. Baltimore & Ohio Railroad
Supreme Court brief1963
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: Office-Suprene Court, U.S.
FILED ~*
i JRARY
SUPE mic COURT. UL
| 3 MAR % 1962
=
~ DAVIS, CLERK |
-In the Supreme Court of the United States
OCTOBER TERM, 196i -—
No. eS | ay
Petitioner;
| VS.
THE BALTIMORE AND OHIO RAILROAD CO.,
Respondent.
PETITION FOR WRIT OF CERTIORARI
- To the Court of Appeals, Cuyahoga County, Ohio,
Eighth Judicial District of Ohio.
A. H. Dupnix, |
MARSHALL I. NuRENBERG,-
714 Engineers Bldg.,
Cleveland 14, Ohio,
Attorneys for Petitioner.
Meyer A. Cook,
Of Counsel. . 7
<=
THE GATES LEGAL PUBLISHING CO., CLEVELAND, ONIO-——-MAIN 1-8647
a
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TABLE OF CONTENTS.
Opinions by Courts Below |
Jurisdiction of This Court
, Questions Presented for Review
Statutes Involved
Statement of the Case
- Statement of Facts and Evidence
Argument -
Summary
Questions 2, 3, 6, 8
Questions 1, 4, 5, 7—
Question 9 |
Conélusion _
‘Relief Prayed For
_APPENDICES:
A. Opinion of the Court of Appeals 7
Journal Entry of the Court of ial
Journal Entry of the Court of Common Pleas.
Orders of the Supreme Court of Ohio
Statutes Involved __.
amo a Dw
Reply - Mee AMO lots 8 Ee oltene ce
Bs
Amended Petition = ee
Answer to Amended Petition ___
TABLE OF AUTHORITIES.
ne
} Cases. |
| Bailey v. Central Vermont Railway Co., 319 U. S.
350, 63 S. Ct. 1062 ee eee 18, 19. :
Cuyaiioga River Power Co. v. Northern Realty Co., |
' 244 U. §: 300, 37 &. Ce. 653... .....----------- 3
Davis v. Virginia Railway Co., 361 U. S. 354, 80 S. Ct.
ST TI cs ck he ce 21
Gallick v. The Baltimore and Ohio Railroad Co., 86
Oh. L..Abs. 1, 176 N. E. 2d 382 | ee |
Gibson v. Thompson, 355 U.S. 18, 78 S. Ct. 2°.(1957) 22
‘Harris v. Pennsylvania Ry. Co., 361 U.S. 15, 80S. Ct.
We aay 26, 28
Inman v. B & O Railroad Co., 361 U. S. 227, 80 S. Ct.
242 (1959) eee | 27
Lavender v. Kern, 327 U.S. 645, 66S. Ct. 740 (1946)
ipoidianla ka oe ea aaa --<--19, 26, 28, 31
McBride v. Toledo-Terminal Railroad Co., 354 U. Ss.
$17, 17S. Ct. 1808 (1057) ...2..2_.._-2__.-_- 26
Michalic v. Cleveland Tankers, Inc., 364 U. S. 325,
vo ese coc, ee 24, 28
New York, New Haven and Hartford Railroad Co. v.
Hanagan, 364 U. S. 441, 81S. Ct. 198 (1960) _ 26, 27
Rogers v. Missouri Pacific Railroad-Company, 352
U.S. 500, 77 S. Ct. 443 NAD ----04-. ---19, 26, 28
Schulz v. Pennsylvania Railroad Co., 850 U. S. 523,
( 76 6. Ce O68 C0008) . Cc 2 26
Sentilles v. Inter-Caribbean Shipping Corporation,
361 U. §°107, 80'S. Ct. 173 (1959) _____ 23
Stinson ». Atlantic Coastline Railroad, 96 So. 2d 305
(1957), 355 U. S. 62, 78S. Ct. 136 (1957) «23
Tennant, Admz. v. Peoria & P. U. Railway Co.,321
: U.S. 29, 64S. Ct. 409 (1944) 29, 30
Constitution.
Constitution ‘of Ohio, Art. IV, Sec: 2 2 |
Statutes. ;
Federal Employers’ Liability Act:
Sec. 1 (45 U.S. C. 51) | ~ 4, 5,6, 19, 58
Sec. 6 (45 U.S. C. 56) aaa . 6,59
Jones Act, 46 U.S. C. Sec. 688 at .- B
Qhio Revised Code: ay :
Sec. 2315:15 6, 8, 59
Sec. 2315.16 = 6, 59
Sec. 2315.17 ‘ . 29, 59
28U.S.C.1257, 0 Bach ee
In the Supreme Court of the United States
| | | ‘OCTOBER TERM, 1961.
No. 7
JAMES GALLICK,
Petitioner,
vs. a ae es
THE BALTIMORE. AND OHIO RAILROAD CO.,
Respondent.
, a
PETITION FOR WRIT OF CERTIORARI = -
To the Court of Appeals, Cuyahoga County, Ohio,
Eighth Judicial District of Ohio.
. OPINIONS BY COURTS BELOW.
Petitioner, James Gallick, respectfully prays that a.
writ of certiorari issue to the Court of Appeals for Cuya-
hoga ‘County, Ohio, Eighth Judicial District of: Ohio, to
review the judgment and decision of that Court in Cases
"Nos. 25017 and 25087 consolidated, entitled James Gallick
v. The Baltimore and Ohio Railroad Co. The decision of
_ the Court of Appeals dated March 23, 1961, is ‘reported in
86 Oh. L. Abs. 1, 176 N. E. 2d 382 (1961), which opinion
of the Court of Appeals is’ appended hereto as Appeiylix
A>The judgment’ journal entry of the Court of Appeals
dated April 11, 1961,*is appended hereto as Appendix B.
The judgment of the’ Court of Appeals reversed a judg-
ment in favor of the petitioner herein which had been
- entered in his favor in the sum of Six Hundred. Twenty- -
five Thousand Dollars ($625,000.09) upon the special ver-
dict of the jury by the Court of Common Pleas of Cuya-
an : 2 |
hoga County. The journal entry of judgment in favor of
petitioner by the Court of Common Pleas of Cuyahoga
County, which incorporates as part of said journal entry
‘the special verdict of the jury, is appended hereto as Ap-
_ pendix C. The, judgment of the Court of Appeals which
reversed the judgment of the Court of Common Pleas in |
favor of petitioner and instead entered final judgment for
respondent was bottomed on the single proposition that
petitioner’s. proofs of causal connection fell short of the:
degree of proof on that issue required by law, hence the
trial court’ erred in not directing a verdict at the conclu-
sion of all of the evidence in favor of respondent, or in the ©
alternative in entering judgment-for a notwith-
standing the verdict. _
Petitioner thereupon sought a review of theggause by
means of a motion to the Supreme Court of Ohio to direct
the Court of Appeals to certify its record to the Supreme
Court of Ohio for review, and also seeking a review on
Constitutional questions under the Constitution ‘of the
Staté of Ohio and’of the United States pertaining to the
right of petitioner to a trial by jury in an action brought
under the Federal Employers’ Liability Act. The juris-
diction of the Supreme Court of Ohio to review the case is
found, under Article IV, Section 2, Constitution: of: the
State of Ohio. Under these provisions of the Constitution
of the State of Ohio, petitioner had no appeal as-a matter
of right to the Ohio Supreme Court. Review by that
Court is discretionary upon the ground that the case is
one “Of public or great general interest,” or that a
- debatable constitutional question is-involved. The review
sought by petitioner raising questions of public or great . ~~:
general interest and constitutional questions was denied
by the‘Ohio Supreme Court. At the same time, respondent
likewise sought a review by the Ohio Supreme. Court of
ee
3 "cal
‘the judgment of the Court of Appeals for Cuyahoga
County by means of a cross-motion to certify, likewise
claiming questions of public or great general interest. The
Supreme Court of Ohio, however, refused to take juris-_
diction of the cause. and issued orders overruling the
’ motion to certify of petitioner, the cross-motion to certify
- of respondent, and determined that no debatable constitu-
_tional question was presented by the judgment of. the
Court of Appeals. Respondent thereupon filed a motion
_ for a re-hearing - on its cross-motion to certify, which
* motion was denied. Thus, all remedies available through -
the state judicial system of the State of Ohio have been
exhausted by petitioner. The various orders of the Su-
preme Court of Ohio refusing to take jurisdiction of the
case are appended hereto as Appendix 'D. |
Under the Law of Ohio, therefore, the judgment of
the Court of Appeals for Cuyahoga County, Ohio, Eighth
Judicial District of Ohio, becomes the final judgment of
the highest court of the State of Ohio in which a decision
can be had. Cuytihoga River Power Co. v. Northern
- Realty Co., 244 U.S. 300, 37 S. Ct. 653.
JURISDICTION OF THIS COURT.
Jurisdiction of this Court to review the said judgment
of the Court of Appeals for Cuyahoga County and to
review the constitutional questions raised by petitioner are
conferred upon ‘this Court by the Act of June 25,°1947, c.
~ 646, 62 Stat., 929, Title 28, U. S. C. Section 1257. The
portions of that section pertinent to jurisdiction « this
’ review provide as. follows:
“Final judgments or decrees rendered by the highest
court of a State in which a decision could be had, may
be-reviewed by the Supreme Court as follows:
4
: (3) By writ of certiorari * * * where any title,
right, privilege or immunity is specially set up or
claimed under the Constitution * * * or statutes * * .
the United States.”
QUESTIONS PRESENTED FOR REVIEW.
1. In an action under the Federal Employers’ Lia-.
bility Act was the Court of Appeals correct in holding
that the proofs of petitioner’ on the roy | of causal con-
nection failed to rise above the level of “speculation and
conjecture” when tested by the quantum of proof pre-
.scribed by this Court to justify submission of the cause to .
the jury?
, & By. its order of judgment directing a-verdict for
) rempondent for the sole reason that the proofs of petitioner |
on the issue of cdusal connection failed to rise above the
level of ‘“‘speculation and conjecture, did the Court of
Appeals thereupon deny petitioner his constitutional guar- -
antee of trial by jury under the Federal Employers’ Lia-. .
bility Act, 45 U.S.C. A., 51? weg
3. Was the invocation of. jurisdictional power by the
Court of Appeals to weigh the evidence and thereupon
substitute its finding for that of the jury on the issue of
legal causation an unlawful exercise by the Court of Ap-
- peals of jurisdictional power-under the doctrines of appel-
late review pronounced by this Court in actigns brought
under the Federal Employers Liability Ac U. S.C. A.,
51? = eer
4.. Where an Sonnitnddion of the transcript of testi-
mony in its entirety discloses circumstantial evidence from
which the jury could infer the necessary legal causation
between respondent’s negligence and petitioner’s injury,
may the Court of Appeals determine as a matter of law
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that suc: ‘idence is not “proof,” but mere): “speculation 7
and’ con) ire,’ and thereby enter judgmert for the re-
spondent as a matter of law after the jury had found for
petitioner and judgment upon the verdict of the jury had
been entered for petitioner?
5. In. an action’ under the Federal Employers’ Lia-
bility Act, was the Court of Appeals correct in applying
as a legal standard to determine legal causation in an
action under the Federal Employers’ Liability Act, 45
U.S..C.A. 51, proof of art “efficient” cause?’
6. In this action under the Federal Employers’ Lia-
bility Act, where petitioner adduced ptoof that his in-
juries were the result of an insect bite from an insect
which could have come from the unsanitary pool of water
complained of, was petitioner required to adduce proof
_ that the insect did not come from other sources for which |
; respondent . was not liable? _
7. In this action wher the Pade Employers’ Li-
ability ‘Act, were the special findings by the jury of neg-
ligence and causai connection supported by credible. evi-
' dence when correctly tested by principles governing ju-
dicial review set forth by this Court?
. 8. In an action ynder the Federal Employers’ ‘Lie
ability Act, where the jury, in.response to specific. inquiries
submitted to it as a special verdict, found particular acts
and omissions of the respondent which in the, opinion of —
the jury consisted negligence, and the jury found a proxi-
mate causal relationship between the conditions. consfi-
tuting negligence and the ihjury to.the petitioner, may the
reviewing Court of Appeals thereupon set aside a judg- te
ment in favor of petitioner entered upon said special ver-
dict: for alleged insufficiency of evidence where there is
credible évidence in the’ record to support the findings ‘of
- jury?
ay
“=
J
6 :
_ 9. Where the Court of Appeals in its Opinion con-
cedes that by overwhelming testimony the pool of stag-
nant, vermin-infested water, alongside the tracks of re-
spondent for many years prior to the bite suffered by peti-
-tioner contained insects in and about said stagnant pool
and that insects of the size described by the injured peti-
_ tioner might infest said pool and bite a man’ and that peti-
tioner did in fact suffer a bite on respondent’s premises
by’some insect in the course and scope of employment. and
_ from such bite severe consequences to him ensued, may
. the Court of Appeals thereupon, under the principles of .
judicial review pronounced by this Court, find prejudicial
error to the rights of respondent in submitting: said cause
to the consideration of the jury on the sole ground that
_whether the insect causing the damage had: any connec-
tion with the pool of stagnant water on respondent’s
~ premises, or whether it came from other’sources on prop-
erty not owned or controlled by respondent, presented only
a series of “guesses and speculations” making a chain of
causation “‘too tenuous’ to support a conclusion of liability
‘on the part of waapacatl
STATUTES INVOLVED.
' The federal statutes involved in this review are rae
of the-Federal Employers’ Liability Act, particularly Sec-
tion 1 thereof (Title 45, U. S. C., Section 51). |
Jurisdic‘ion of the federal claim by the state court is
provided in Section 6 of the Federal Employers’ Liability
Act (Title 45, U. S. C. Section 56).
The following statutes of the State of Ohio will aid in
an understanding of some of the issues in this appeal: Ohio
Revised Code, Section 2315.15, providing for the submis-
sion of determinative issues to the jury in a special verdict:
Ohio Revised Code, Section 2315.16, providing for the
7
' testing of a special verdict by-special interrogatories; and
Ohio Revised Code, Section 2315.17 for the rendering of a
judgment where a special verdict is tested by interroga-
tories. ’
The foregoing federal..and state statutes are appended
to this petition.as Appendix E.
STATEMENT OF THE CASE.
Petitioner; plaintiff below, filed an action against re-
spondent railroad, defendant below, in the Court of Com-
mon Pleas of Cuyahoga County, Ohio. The petition after
the necessary allegations to invoke the applicability of the
Federal Employers’ Liability Act, alleged negligence in |
- that defendant knew that by permitting a pool of stagnant
water on its premises at Lime Road and the Columbus
Road Bridge in Cleveland, Ohio, to accumulate dead pi-
geons, rats, bugs and vermin, insects would be attracted to
said area, and that its employees would have to work under
‘unhealthful and unsanitary conditions. Plaintiff further al-.
_ leged that by reason of such negligence and aga direct and —
_ proximate result thereof, he was caused to be bitten by an
‘insect while working in and about said pool of stagnant
' water in the performance of his employment duties. which _
caused his system to become poisoned and which resulted
in the formation of deép, acute ulcerations with draining :
about his extremities and body, which injuries have neces-
‘sitated surgery for the amputation of both of his legs. that
_ he is confined to his hospital bed and a wheelchair and will ©
remain so into the indefinite future. Plaintiff alleged other
injuries and permanent incapacity from earning’ wages, for
“all of which hé prayed as damages the.sum of Seven Hun-
dred Fifty Thousand Dollars ($750,000.00).
Defendant, by its answer, admitted that plaintiff's du-
ties for respondent as a yard foreman and yard helper were
8
in furtherance of interstate commerce and that the work
duties of petitioner, during the time alleged, specifically
the month of August, 1954, caused him to be present from
time to time at or near tracks of respondent located in the
vicinity of Lime Road and the Columbus Road Bridge,
where the alleged injury occurred. Respondent thereupon
_ pled in its answer to the amended petition certain affirma-
tive defenses which were denied by a reply. The pleadings
on which the issues were joined, specifically the amended
petition of petitioner, respondent’s answer and the reply of
petitioner, are all appended hereto. Appendix F.
As already indicated, the trial court submitted cer-
tain specific issues to the jury as alleged determinative is-
sues undgr the special verdict statute of the State of Ohio,
Ohio Revised Code, Section 2315.15. Upon consideration
_ of the jury’s answers to said determinative issues, the trial
court thereupon entered judgment in favor of petitioner.
Subsequently, various motions of respondent for judg-
ment on the special verdict, a new trial, or judgment in its
- favor notwithstanding the verdict of the jury, were over-
ruled by the trial court.
It is important to note that the Count of Appeals in
its review of the cause specifically found no error under
the laws of the State of Ohio in the admission or exclusion
of evidence; the charges of law submitted to the jury; the
form of the special verdict or the answers of the jury
thereto; the size of the verdict or judgment; or that the
special verdict of the jury did not contain findings suf- —
ficient to support ‘a judgment for petitioner. It is crystal
clear from the Opinion of the Court of Appeals that if that
Court erred in its conclusion that under the law the evi-
dence was insufficient to warrant*submission of the cause
te the jury in the first place, then in all other respects the
judgment in favor of petitioner was proper. The various
9
procedural claims of error asserted by respondent were
specifically rejected by the Court of Appeals and by the
Supreme Court of Ohio in its refusal to take jurisdiction
on the cross-motion to certify of respondent and denial of
the motion for rehearing of respondent. Thus, the single
issue~presented is whether the proofs justify with reason
the finding by the jury that respondent’s negligence played
some part in producing petitioner’s injuries. The Court
of Appeals held as a matter of law that the proofs did not.
This is the fundamental error which forms the basis for
the instant petition for a writ of certiorari.
The transcript of testimony which forms the basis of
the record upon which a determination of the sufficiency
of the proofs must be made will now be referred to in its
important aspects in support of petitioner’s claim that it
was error to deprive him of his judgment. Numbers as
they appear in parentheses refer to page numbers in the
typewritten transcript of testimony, i.e., the Bill of Ex-
ceptions as it was submitted to the Court of Appeals and
to the Supreme Court of Ohio.
STATEMENT OF FACTS AND EVIDENCE.
In brief, by way of background, it may be stated that
in August of 1954, while performing his usual duties as a
member of a switching crew, petitioner had occasion to
walk in a northerly direction urider the Columbus Road |
Bridge in the “Flats” of Cleveland on the west side of re-
spondent’s River Track. The Rivér Track was a singlé
track running in part under this bridge. Respondent’s
right of way included the area on both sides of this track
under the bridge. He stopped underneath said bridge
for a period of approximately thirty to forty-five seconds
‘to see whether his diesel switch engine was following him -
10
. up the track. Upon ascertaining that it was so doing, he
took one or two steps again to the north at which time he
felt the “bite” of an insect on the back of his left leg just
above the knee. Upon feeling the bite he squeezed this
area of his leg and felt a crack or pop. Something then
rolled down his pants leg about two inches long and half
inch in diameter. Opposite to where petitioner was stand-
ing, on the east side of said track, was a pool of stagnant
water which contained: quantities of dead pigeons, dead
rats and sundry varieties of crawling and flying bugs, lice
and vermin. The stagnant.pool underneath the bridge was
within respondent’s right of way under its possession and
control. :
William Molnar, a brakeman of fourteen years service
with the respondent, who had worked in this area on and
off for several years (R. 23, R. 24), described the area as
a swamp with dead pigeons, rats and insects as long as he
could remember.
“Q. Is it not a fact, Mr. Molnar, that when those
‘rats and pigeons, the dead rats and pigeons, were
lying in that ditch, there were bugs and insects around
then, is that’not a fact, sir?
A. There is always bugs where the stagnant —
water was.
Q. Were they there when the rats were there and
the dead pigeons were there, Mr. Molnar, is that not
a fact?
A. Yes.” (Emphasis added.)
Walter Rady, a brakeman employed by the defendant
for thirty-nine years during which he worked this area on’
Saturday and Sunday as a relief man (R. 44) described
these conditions substantially the same as Molnar.
-
11
William Clason, a yard foreman of fourteen years
service, who had worked the Seneca Street job (R. 5I, R.
52), corroborated these conditions and further the in-
adequate maintenance efforts of respondent section crew
as follows:
“Q. Is it not a fact that Paul Delaria, the section
foreman, had made several attempts to clear this
swamp up but was never successful?
A. Yes, he did-work on it to drain it.
Q. Sir, please. Read the question. You can an-
swer that, if I have stated a fact to you you say yes,
and if I haven’t stated a fact you say no.
A. Yes.
Q. Is this not a fact, that the condition was bad
several ‘years ago, and was still bad in August of ’54,
sir?
A. Yes.”
Petitioner himself had ten years of experience with
respondent as a brakeman or yard foreman (R. 90). He
described the conditions underneath the bridge (R. 99) as
follows:
“Q. Jim, can you describe the condition under-
neath the bridge; particularly along the east rail as it
was in August of 1954?
A. Well, there ivas stagnant - water, dea rats,
pigeons, with insects flying above and in the water.
Q. Were those rats and pigeons in the water?
' A. Inthe water and long the rail.
Q. How long, if you know, had tt.at condition
which you now describe existed before August of
1954? i
A. As lorig as I remember.
Q. Well, how long do you remember, Jim?
A. Well, the length of time that I worked for the
B & O Railroad, 10 years.
‘12
Was it ever cleaned up?
I have never seen it cleaned up.
Have you ever complained about it to any-
- one? |
“Yes, to Paul Delaria, the track foreman.
To Paul Delaria, and he is what?
He is the track foreman. . .
. Had you complained about that before August
of 1954?
A. Yes, a long time before.
Q. Had you complained about it once or more
than once?
A. More than once.” (Emphasis added.) _
It is clear from the testimony of respondent's section
" foreman, Paul Delaria, that the river track underneath the
. Columbus Road Bridge and the drainage of accumulated
water, from the swamp area underneath the bridge on the
east side of the track to a manhole south of the bridge and
also’ east of the track, was under his jurisdiction for
maintenance. This area is depicted by Exhibit 12, the —
blueprint prepared by Cyril W. Neff,\the Civil Engineering
expert called by petitioner, and Exhibit M, respondent's
aerial photo. Although the Columbus Road Bridge itself
is a public bridge the all-important is that control of
the drainage underneath the bridge was exclusively under
jurisdiction 4 repondent’s maintenance crew ad by
Mr. Delaria. -
The measurements. of Cyril W. Neff were the only
testimony in the entire case purporting to show grade
‘elevations of the area ih question. The entire. problem
with regard to draining the swamp area is summarized -by |
Mr. Neff (R. 231) as follows: ;
“Q. Mr. Neff, I pointed to the area underneath the
bridge, that swamp area we are talking about. Is
that lower than the pipe or higher, sir?
»
BO Pl > O>o
13. =
A. That area is lower than the pipe.
Q. And is that why it will not flow into the pipe,
sir? . 3 a
A. That is one of the reasons why it won't flow
into the pipe.
Q: And could that be eliminated by. the filling in
of slag that you told us about?
A. Yes, sir.” 4
From the foregoing evidence the jury was certainly ©
justified in finding that on premises under the control of
respondent there existed a pool of stagnant water into
which were aecumulated dead ‘pigeons. dead rats,.vermin { ny
and bugs. Petitioner was required to perform his work .
duties in close proximity to said area.
With regard to the unhealthful or ee hi nature
of the foregoing conditions, there is the testimony of Dr.
Ippolito (R. 395) as follows: |
“This man was working near a ‘rat-infested pool, with
dead rodents in it, and bugs flying in the air. The man
was bitten by an: insect, and | the conditions that ‘fol-
lowed thereafter. I don’t know how I could assume
anything else, that the causative agent was this insect
bite.”
Dr. Ippolito, (R. 396 ) gave as his ‘guileaianel opin-
ion that some bacteria was introduced into this man’s body —
at the time of the bite, and further testified as follows: (R.
401) .
_ “T get it from the history of the patient. Th. patient
told me that he was bitten by an organism, oy an in-
sect, and we do know that stagnant pools of water
particularly that are infected and have rodents, rats,
in them, that insects will go to that area more so than
in a dry clean area.” (Emphasis added. )
Further testimony with regard to the unsanitary and
unhealthful nature of this work area is contained in, a
~ | : 14
_ portion of the cross examination of Dr. Robin Anderson,
(R. 463) who testified as follows:
~ “From this point we have our own history in terms
of the record. We must carry our basic reasoning back —
one step further, and that is that the présence of filth
of rats, of dead vermin, of stagnant water, predisposes
to disease, predisposes to the growth of insects and the |
like. | a |
“This man was bitten in close proximity to such
an area of stagnant filth, and it is only logical°and we
must assume that the probability is there that what- |
ever it was in the insect, in the bug, is related to the
presence of that area.” (Emphasis added.) —
Further, @r. Anderson testified as follows (R. 467):
“I can say in terms of medical specialized knowledge,
a medical,.a doctor is expected to understand princi-
ples of sanitation, and as such we know that the
presence of stagnant water is traditionally a breeder
of water insects, and we know that the presence of rats _
implies the presence—or of various insects that feed
‘ on it, such as plague-carrying insects which is the rat
flea which lives on the rat both ‘living and dead, and
it is the cause of the famous plague épisodes in history. -
We know a certain number of facts which are special- -
ized perhaps in the medical sense but not specialized _
for an entomologist or an insect expert.” (Emphasis —
added.) oi % na
As already noted, the incident occurred after peti-
tioner had been standing for thirty to forty-five seconds a
track width opposite the cesspool which contained the
filthy conditions already referred to in the performance’
of his work duties. He then turned around and took,a
step or two to the north when he felt this bite and cracked
or popped what had the feel of a hardshelled insect.
| Thus, petitioner (R. 111) testified that he felt pain
which was’ severe in the beginning and that when he
c
\
15
climbed-on the footboard of the did¥él; he showed it to one
of his fellow crew members. When he finished his tour |
of duty, he had a sensation above the knee on the back of
his thigh and washed the area at his locker with soap, a
washrag and water (R. 112). When he arrived home at
11:00 o’clock P. M., he was still conscious of the sensation .
_and had his wife look at the rear (R. 113). The area never
' cleared up and after four or five days, formed a boil (R.
114). The boil burst in the bathtub following which he
went to his family doctor, Dr. Heller (R. 114, R. 115). The
Marymount Hospital records introduced into evidence and
other testimony prove that from this driginal site the first
-ulceration developed. This was, of course, corroborated by
the petitioner himself,.
Mary Gallick, the wife of petitioner, testified that on —
the night in question, she saw a welt just like when you
~ get a bite which was pink in color and about tthe size of her —
‘nail. The following morning (R. 65),-it got deeper in color,
a deeper pink. By the fifth day it was larger and real pink
‘and began to raise (R. 66). By the time petitioner went
to Dr. Ippolito, the area in question was described by Mrs.
Gallick as follows: me
“By that time it was about the size of a half a dollar
_ and it had raised and it had been draining on the side,
and it looked very ugly.” (R. 67)
Without further encumbering this petition with fac-
tual recitations, it is undisputed that when this original
lesion failed to heal with conservative treatment, peti-
tioner was hospitalized at Marymount Hospital where-
upon a skin graft was instituted and it was only following
the initial skin graft that the skin surfaces on both legs
began to break down and form ulcerations which there-
upon spread to other parts of his body. During this entire
16
period of time, petitioner was under constant surveillance
of trained medical technicians and physicians with daily
progress notes recording his confinement at Marymount
Hospita! and the Cleveland Clinic. These records, which:
were introduced into evidence, Exhibits 13,14, 15, 16, 17
and 18, disclose a steady course of disability and debilita-
- tion, all stemming from the original lesion. It is significant
to note that the final diagnosis of the Marymount Hospital ;
records recorded after almost two years of continuous
hospitalization was “pyodermagangrenosa, secondary to)
insect bite.” a 7
Respondent’s own medical expert, Dr. Davis, testified
as follows (R. 742, R. 743): .
“Q. Doctor, is a bite or sting from a bug a trauma?
A. Yes:
‘Q. What is the meaning of the word trauma?
A. I believe it means an injury.
Q. What is the meaning of the term local trauma?
A. Local trauma means that it happened ‘in a
locality of the body rather than to the whole aia
Q..An isolated area.
A, Isolated area. |
.. Q. Is pyoderma used sometimes instead of pyo-
- derma-gangrenosa?
A. Yes, it can be. They do not mean quite the.
same but they are used together.
Q. Do you have an opinion as to whether pyo-
derma can be caused by trauma?
A. Yes, I think it can. \
Q. Is it one of the recognized causes of guatorne-
gangrenosa?
| A. Well, yes, I think it is fair to say it would be a
recognized cause.” (Emphasis added.)
It must be emphasized from the foregoing that it was’
. only in the area in and about the Columbus Road Bridge,
particularly where the pool of stagnant water was main-
17
tained, that insects of the approximate size and character
which bit petitioner were observed (R. 255, R. 257). No
witness testified to having observed similar insects in any
other area. We believe that this evidence as herein .set
forth, under the law, as will be analyzed hereinafter, en-
titled the jury to make the inference which it did as to a
causal connection between the stagnant: pool of water,:
the bugs, the bite which plaintiff sustained and his illness.
In this connection again it must be emphasized that both
of his treating physicians who testified, i.e., Doctors Ippo-
lito and_Anderson, surgeons of unquestioned reputation
and qualification, testified that the described conditions
were the most likely source of the disease process which
infected petitioner and that as physicians it was neces-
sary for them to be familiar with problems of sanitation
which would include the problems of disease process
bred by dead, putrid animal matter of the ‘type herein
described, with insects seen crawling and flying in and -
about this matter.
ARGUMENT. '
Summary.
This petition seeks to correct fundamental errors in
the very nature and: method of the judicial review in-
dulged in by the Court of Appeals in an action under the ©
Federal Employers’ Liability ‘Act, which fundamental
errors the Supreme Court of Ohio refused to review, there- .
by reducing the judgment of the Court.of Appeals to a
final judgment. :
Respondent had sought review from the Court of Ap-
peals of Cuyahoga County upon the judgment in-favor of
petitioner entered by the trial court and had alleged for
the consideration of the Court of Appeals sixteen grounds
of error. Most of these grounds concern themselves with
18
procedural questions particularly, evidentiary questions,
instructions of law, the findings of the jury on the special .
verdict, the amount of damages assessed by the jury, and
other issues of trial procedure. All of these alleged grounds
of error were carefully considered by the Court of Ap-
peals and as stated in the language of the Court of Appeals,
“All other claimed errors have been examined, and we
find none prejudicial to the rights of the appellant.” The
Court of Appeals carefully limited its judgment of re-
versal to the narrow ground of an insufficiency of evidence
from the proofs on the issue of causal connection. —
Questions 2, 3, 6, 8. .
One of the early fundamental cases in which ‘his
Court held that trial by jury is part and parcel of the
remedy afforded railroad workers under the Federal Em-
ployers’ Liability Act was Bailey v. Central Vermont Rail-
way Co., 319 U. S. 350, 63 S. Ct. 1062:(1943). The Bailey
case certainly did not prohibit Appellate Court super-
vision or jurisdiction over a jury verdict, but it did make
it plain that action by Trial Courts or Appellate Courts in |
removing the case from the consideration of the jury by:
- way of a directed verdict in ‘“‘close or doubtful cases” did
violence to the constitutional right under the Federal Con-
stitution of an injured railroad employee: to trial by jury. 7
Yet in the instant case the Court of Appeals held the trial
judge committed prejudicial error to the rights of respond- ‘
ent in not directing the case, thereupon raising the issue
squarely as to whether the record was so devoid of evi-
dence in support of the principal contentions of petitioner
as to remove it from the “doubtful or close” category re- _
ferred to in the Bailey case.’
‘ 19
While perhaps the standard of a “doubtful or close
case” as pronounced in the Bailey case might be considered .
somewhat nebulous in determining the test of a jury case
~ under Section 51 of the Federal Employers’ Liability Act,
it would certainly seem that after the pronouncement
of this Court in Rogers v. Missouri Pacific Railroad Com-\
pany, 352 U.S. 500, i Ct. 443 (1957), a clear standard
of what ‘constitutes a jury case was prescribed. In the .
Rogers case this Court made the now anne pro-
nouncement: '
“Under this statute the test of a jury case is simply
whether the-proofs justify with reason the conclusion
that employer negligence played any part, even the
slightest, in producing the injury, or death for which
_ damages are sought.”
' OF course, in the Rogers case one might argue that
the question is still open as to what this Court meant when
the so-called “rule of reason” was pronounced. However,
the Rogers case was decided in 1956, ten years_ after the
earlier case of Lavender v. Kurn, 327 U. S. 645, 66 Lc
740 (1946), in which this Court stated:
“A measure of speculation and conjecture is re-
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.”
The jury with reason could conclude that there’ was
no other logical place for the bug to come from except the
pool of stagnant water with the dead rats, pigeons and
vermin. This was the only place where such bugs or in-
sects were described by any of the witnesses as having
been seen. It was only a track-width from the place where
petitioner was standing at the timé he was bitten. But,
even if the bug could have come not only from the stag-
%
20
nant pool but from other sources as well, for which the
respondent would not be liable, the jury under ‘the fore-
going authorities clearly had the right to make the infer-
ence that it did in fact céme from the pool. The jury _
having made such inference, it was prejudicial error for
the reviewing courts to substitute the inference of the jury
for another inference favorable to that of respondent.
-” Questions 1, 4, 5, 7.
' The Court of Appeals determined the test of causation
for the within action to be as follows, from page 15 of the ~
Opinion of the Court.
“The question of causation should not get to the
jury, and the Judge should direct a verdict for the
defendant, unless the Court is of the opinion that a
jury can reasonably find that the defendant’s tort was
an efficient cause of the damage to the plaintiff and.
- not a mere antecedent fact.” (Emphasis added.)
We will, of ‘course, agree that if the employer negli-
gence is a mere antecedent fact, petitioner has failed to
prove a necessary element in his case; namely, that there ‘
be proof of some causal relationship, however slight, be-
tween the employer negligence and the injury of the work-
- man. °It does not necessarily follow, however, that this
degree of causal connection rise to the level of being an
“efficient” cause in order to be a basis for recovery. The
word “efficient” is defined in the dictionary as meaning
immediately effecting; as the efficient cause; hence, effec-
tive in causing or producing; as efficient action. It is quite
clear, therefore, that although on the one hand the Court
of Appeals in its Opinion »recognized that common law
proximate causation is not required in this action, never-
theless the Court fell into the error of applying this test
under another label.. There is little to distinguish an
21
“efficient” cause from a “proximate” cause. A cause to be
proximate must be efficient.
The fallaciousness of the test applied by the Court of
Appeals to hold that petitioner fell short,of proving a case
of legal causation may be demonstrated by analysis of -
many of the recent cases decided by this Court involving
this identical issue. -A classic illustration that ‘some’
causation as distinguished from “efficient” causation will
suffice to sustain the action may be found from the recently
decided case of Davis v. Virginia Railway Co., 361 U. S.
"354, 80 S. Ct. 387 (1960).
The majority of this Court disagreed with the resolu-
tion of this issue by the State Court and held as follows
from page 356 of 361 U. S.:
“We think it should have been left to the jury to
decide whether respondent’s direction to complete the
spotting operation within 3( minutes, plus the ex-
perience of the brakemen assigned to perform: this
‘hot job’ might have precipitated petitioner’s injury.
The debatable quality of that issue, the fact that fair- ©
minded men: might reach different conclusion, em-
phasize the appropriateness of leaving the question tu
the jury. The jury is the ‘tribunal under our legal
system to decide that type of issue * * * as well as
issues invulving uncontroverted evidence * * * to
’ withdraw such a question from the jury is to usurp its
function.” (Emphasis added.). |
S With further regard to the Davie case, the evidence
showed in fact that there was no specific order to even
complete the jab within 30 minutes. The evidence did
show that the conductor: wes requested to complete his
‘spotting during the lunch hour of the Ford employees and
when asked how long the lunch hour ef the Ford employees
was, the petitioner replied, “Thirty minutes.” In any event,
this is another illustration that this Court will not tolerate
22
removing the issue of legal causation from the considera-
tion of the jury under the legalistic label that the evidence
would require the jury to indulge in “speculation and con-
jecture” rather than “proof.”
Another good illustration on the degree of causation
necessary to sustain the case is Gibson v. Thompson, 355
U. S. 18, 78S. Ct. 2 (1957), involving injuries to an
engineer. In the newly constructed yard in which the
engineer worked, no walkway had been provided for the
900 foot walk from the roundhouse to yard C. : Instead, it
was necessary to walk across yards A and B, detouring °
around equipment and switching movements and progress
in those yards. The gravel in the yards was loose and un-
packed. It shifted beneath the engineer as he was walking
through the yards and he fell and was injured.. A jury
found that the Missouri Pacific Railroad Company had
. failed to proyide a reasonably safe place in which to work,
and the Texas Court of Civil Appeals agreed, but the Texas
Supreme Court reversed. and ordered judgment for the
railroad. That Court said that even though it was bound
by Federal Decisions as to what constitutes negligence, as .-
to sufficiency of the evidence it had the right to appraise
the evidence in accordance with the concept of negligence
as announced in prior cases. See 298 S. W. 2d 97, (1957).
By this standard, the Texas Supreme Court found no
‘negligence since the railroad had constructed the yard in
accordance with specifications of the “best qualified con-
' struction engineers in America” and since, though other
employees had had similar falls, no one had ‘ever com-
plained to the railroad about the gravel. However, again
this Court — with its oft-repeated general admoni-
tion:
“We hold that the proof justified with reason the
jury’s conclusion that employer negligence played a
part in producing the petitioner’s injury.”
23
. Even more dispositive of the current law on the issue
of legal causation is the recently decided case of Stinson v.
Atlantic Coastline Railroad, 355 U. S. 62, 78 S. Ct. 136
(1957). The facts as revealed in the State Court decision
reported in 96 So. 2d 305 (1957), were that Stinson Jeft
his engine, which was on a wrecking job, and went to get
something to eat. He was never seen again. His severed
body was found across the track three-quarters of a mile
from where he had last been seen. The body was nude
and his clothes were wadded between the tracks 150 yards
away. In Stinson’s absence, the fireman had. made several
movements of thd@train, in violation of company rules, and
had not sounded the bell before doing so, as the company
rules required. The Alabama Supreme Court held that the
jury could find negligence from this breach of the company
rules, but under the circumstances, in which Stinson’s
body was found, it held there was no evidence as to what
had proximately caused -his death, or that it was in the
course of his employment. It thereupon ordered what
would be the equivalént of an Ohio directed verdict for
the defendant. Again, this Court reversed the Alabama
Supreme Court, stating merely that the evidence presented
a jury question as to whether Stinson’s death resulted in
whole or in part from the negligence of the railroad.
Of similar import is Sentilles v. Inter-Caribbean Ship-
ping Corporation, 361 U. S. 107, 80 S. Ct. 173 (1959) ©
_ reversing 256 F. 2d 156. In the Sentilles case, the seaman
brought an action for damages under the Jones Act, 46
U.S. C. A. Sec. 688, claiming damages by reason of being
pitched into the air and falling back to the deck of the ship
thereupon allegedly activating or aggravating a previous
.latent tubercular condition. Judgment had been rendered
for the seaman in the District Court which was reversed
by the Circuit Court of Appeals because the medical testi-
. ‘
24
mony as~to causal connection between the traumatic
‘incident and the tubercular condition was in the opinion of .
the Court “speculative and based upon conjecture.” Once
again, this Court rejected the label of “speculation and
conjecture” as a ground for taking away a jury verdict, but
held instead, page 109 of 361 U. S.: .
“The jury’s power to draw the inference that the
aggravation of petitioner’s tubercular condition, evi-
denced so shortly after the accident, was in fact caused
by the accident, was not impaired by the failure of
any medical witness to‘testify that it was ‘in fact the
cause. Neither can it be impaired by the lack of medi-
cal unanimity as to the respective likelihood of the
potential causes of the aggravation, or by the fact that
other potential causes of the aggravation existed and
were not conclusively negated by the proof.”
To the same effect, see Michalic v. Cleveland Tanke?s,
- Inc., 364 U.S. 325, 81S. Ct. 6 (1960) reversing 271 F. 2d
194 (6C..C.A.). In the Michalic case, the claim was that a
wrench dropped on the petitioner’s foot aggravating an
existing Berger’s disease. As noted from the opinion,
Michalic contended that the proofs were sufficient to justify
the jury in finding with reason that there was play in the
jaw of the wrench he was using which prevented a tight
grip on the nut, thereby entitling the jury to find that re-
spondent, the shipping company, furnished him with a de-
fective wrench. The,trial judge found the evidence to be
insufficient to present a jury question whether the wrench
was a reasonably suitable appliance, because on the theory
that the grip was worn there was never any mention of the
grip in the case. The Circuit Court of Appeals took the
same view saying there was no evidence that the open or «.
“jaw end of the wrench was in any way deficient. The fact
that the wrench slipped is not evidence that its slipping
was the consequence of some condition in the jaw.or han-
“ow
4
=
25 ; ;
dle in the wrench. The Opinion of the Sixth Circuit Court
of Appeals may be found in 271 F. 2d 199. However, this
Court. stated as follows: | :
“We think that both lower Courts erred. True,
there was no direct evidence of play in the jaw of the
wrench, as ia Jacob v. New York City, 315 U. S. 752,
754. But direct evidence of a fact is not required. Cir-
cumstantial evidence is not only sufficient but may
also be more certain; satisfying and persuasive than
direct evidence.” (Emphasis added.)
There is nothing unusual ‘about the foregoing
pronouncement. and it can. of scourse, be: said with
certainty that both. the trial court and the Sixth Circuit
Court of Appeals recognized that it is not necessary to
have any direct evidence to prove an essential fact in is-
sue. A sufficient degree of circumstantial evidence has al-
ways been recognized even in common law as proof of a
fact in issue. The real question is in evaluation of the cir-
cumstantial evidence to determine whether in fact the evi-
dence as thus adduced is sufficient to entitle the jury ‘to
make the inference of the essential facts or whether it falls
below the standard of proof and must be relegated to the
role of “speculation and .cofijecture. It seems that once
again the mandate is clear that the decision as to whether
' the evidence is sufficient to permit an inference of an es-
sential fact, or falls below the standard of proof required,
and is mere speculation and conjecture is not, in an
F. E. L. A. case, or a ners Act case, a decision which the
Appe"'ate Court may make but is part of the right of the
employee € have the jury weigh the evidence. Once there
is some evidence of a fact, the question as to whether that
evidence is sufficient to entitle the jury to make an in-
- ference of a further fact essential to support the cause of
action is. under the Federal Employers’ Liability: Act. a
. 26
function strictly for the jury. The jury, cannot be deprived
of its right to exercise that function by classifying the cir- |
cumstances as being within the realm of mere specula-
tion and conjecture.
Other cases which might be cited in support of the
proposition that an efficient producing cause is not the test
to be applied in a Federal Employers’ Liability Act case as
the standard of legal causation, are Lavender v. Kurn, 327
‘U.S. 645, 66 S. Ct. 740 (1946) ; McBride v. Toledo-Termi-: .
nal Railroad Co., 354 U. S. 517, 77 S. Ct. 1398 (1957);
Rogers v. Missouri Pacific Railroad Co., 352 U. S. 500,77
'S. Ct. 443 (1957); Schulz v. Pennsylvania Railroad Co.,
350 U. S. 523, 76 S. Ct. 608 (1956) ; Harris v. Pennsylvania
Ry. Co., 361.U. S. 15, 80 S. Ct. 22 (1959).
. Question 9.
This Court has, of course, on frejuent occasions held
that in the absence of proof of negligence a verdict for
petitioner cannot stand. See Inman v. B & O Railroad Co.,
361 U.S. 227, 80S. Ct. 242 (1959) ; New York, New Haven
and Hartford Railroad Co., v. Hanagan, 364 U. S. 441, 81
_§. Ct. 198 (1960). However, it is equally clear from the
authorities already cited that where the proofs justify a
finding of negligence, a verdict for petitioner should not
be reversed under the standards of judicial review pro-
nounced by this Court on a theory that the causal con-
nection between such negligence arid injury is based upon
_ speculation and conjecture, particularly when there is an
evidentiary basis in the record for a finding of causal con-
nection.
It shauld be noted, hans at the outset, that in
both the Inmen and the Hanagan cases this Court found no
evidence of negligence, and that the injuries were in fact
brought about by the intervention of a third party over
27°
| hun there was.no showing that the railroad had any right
of direction and control. Neither the Inman nor the
Hanagan cases were concerned with the sufficiency of proof
‘of causal conneetion once the negligence of the employing
railroad was-established to the satisfaction of the Court.
In the instant case, as noted on page 13 of the Opinion of
the Court of Appeals, the necessary elément of negligence
was established from the record to the satisfaction of that’
- Court. Thus, the Court of Appeals stated, page 13: .
“We can, with reason, say that, to maintain for a
period of years a stagnant, verthin-infested pool of
water on and over which insects gather, on property
where employees are required to work, could furnish
the gravamen of an offense under the Federal Em- |
ployers’ Liability -Act.”
In this connection, it is worthy to note that unlike the
Inman and Hanaga» cases no third party is here involved.
The negligence was the improper maintenance of its own
property by the respondent, and a static condition of many
years existence of which, according to the proofs, the re-
spondent had adequate knowledge. It cannot be argued:
. with any degree of fairness that the insect in the instant
case, which was merely a. transmittal agency, can be
likened to the “drunken driver” in the Inman Case, or the
“suicide” in the Hanagan. case.
.At this point it is well to digress and analyze tuvther
the Opinion of the Court of Appeals as found on pages 15
and 16 in which the Court fell into the error of concluding
that the evidence in support of the inference that the
‘ poisonous insect canre from the stagnant pool of water fell
. short of the required degree of proof because the petitioner
had failed to adduce evidence to exclude the fact that tt
may have cfine from the nearby putrid mouth of the Cuya-
hoga River, or from w eeds, 6@ unsanitary places situated
- on property not owned or controlled hy the railroad. It was
28
for this reason that the Court of Appeals determined that
the evidence that it came from the pool of putrid water |
under the’Columbus Road Bridge required guesswork,
speculation, or conjecture on the part of the jury. We feel
that any fair reading of the Opinion of the Court of Ap-
peals makes it obvious that whdt that Court is saying ts
that there was evidence, as already alluded-to in this brief,
from which it might have been inferred that the insect be-
came infected from the pool of water and thereupon crawl-
ed up petitioner’s pants leg and bit him, setting in motion
the chain of events which led to‘his present condition. But. -
there was likewise evidence that the insect may have come
* from contaminating sources over which the respondent had
absolutely no right of control and produced the same re-
sult; that to determine from which source this particular
insect came would involve pure speculation and conjecture
on the part of the jury. This is but another way of saying
that where there are two cause’ each of.which are ca-
pable of producing the harm complained of, but for only
one of which the defendant would be liable, it devolves
upon the petitioner, having the burden of proof, to elimi-
nate the non-liability cause. .
However, as already noted from the many citations
herein set forth, particularly Lavender v. Kurn, supra;
Rogers v. Missouri Pacific Railroad Co., supra; Harris v.
Pennsylvania Railroad Co., supra; and Michalic v. Cleve- .
land Tankers, Inc., supra; the power of the jury to make
the inference that the insect came from the liability source,
‘rather than one of the non-liability sources mentioned, is
peculiarly a jury function under the law of causation as
applied, to Federal Employers’ Liability Act cases. It was
the failure to recognize this role of the jury which forms
the fundamental basis of the error of the Court of Appeals -
as is demonstrated by their use and reliance upon the lan-
Ca
wh
29 ,
. guage of “efficient causation” in the Opinion of that Court.
The Court of Appeals thus reversed a judgment in favor
of petitioner and entered final judgment for respondent on
the false premise that petitioner must not only adduce _ .
proof of causation but eliminate non-liability causes as
well. This common law doctrine which is part of the law
of “proximate causation” has repeatedly been repudiated
by this Court in Federal Employer Liability Act cases.
| In this connection, we believe that the principles of
law enunciated by’this Court in the leading case of Ten-
nant, Admz. v.Peoria & P. U. Railway Co., 321 U. S. 29,
64 S.Ct. 409 (1944), have peculiar application to the
‘issues raised by the instant petition.
In the Tennant case it will be recalled a switchman
was killed’ under circumstances which the Courts below
’ . (134 F. 2d 860) held insufficient to establish evidence of
causal connection. There were disputing inferences: which
could reasonably be drawn from the evidence, all as more
- fully pointed out by this Courg on page 33 of its Opinion,
321 U..S. On page 34 of 321 U. S., the Opinion of the
Court, the following is contained:
“In holding that there was. no evidence upon which to
» base the jury’s inference as to causation, the Court: _
below emphasized other inferences which are sug- _
gested by the*conflicting evidence. Thus it was said *
to be unreasonable to assume that Tennant was stand-
ing on the track north.of the engine in the perform-
ance of his duties. It seemed more probable to the
Court that he seated himself on the footboard of the
engine and fell asleep. Or he may have walked back
unnoticed to a point south of the engine and been
killed while trying to climb through the cars to the
other side of the track. These and other possibilities
suggested by diligent counsel for respondent all suf- ~*
. .fer from the same lack of direct proof as charscterizes
the “ae by the jury. But to the extent that
’ al
j 30 |
they involve a disobedience*of duty by Tennant no
presumption of risk or centributory negligence on
Tennant’s part be presumed in order to negate an
inference that death was due to respondent’s negli-
gence.” (Emphasis ours.) . €
321 U.S. 35, of the Opinion of the Court:.
: “It is not the function of a Court to search -the record
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 un- ©
certain inferences. The focal point of judicial review
is the reasonableness of the particular inference or
conclusion drawn by the jury. It is the jury, not the —
Court, whieh is the fact-finding body. It weighs the
contradictory evidence and inferences, judges the .
credibility ‘of witnesses, receives expert instructions,
and draws the ultimate conclusion as to the facts.
The very essence of its function is to select from
among conflicting inferences.and conclusions that
which it considers most reasonable * * * That-con-
clusion, whether it relates to negligence, causation or
any other factual mattef¥, cannot be ignored. Courts
are not’ free to reweigh\'the evidence and set aside
-the jury verdict merely because the jury cfild have
- drawn different inferences or conclusions dr because
Judges feel-that other results are more reasonable.”
(Emphasis ours. )
It is clear from the caveat of the Tennant case that
the Court of Appeals fell into the very error admonished
against by this Court. Specifically, in removing from the
jury its function to select from among conflicting infer- -
ences and conclusions that which the jury considered most
-, reasonable,” even though there were proofs in the record
for the jury to select the very’ inference which it did;
nameiy, that the bite to petitioner. which caused his con-
dition of ill-being was directly connected to the unsanitary
conditions maintained by respondent jr in 1 said pool of stag- ~
nant water.
a
&
31
CONCLUSION.
We feel that we have demonstrated from the control-
‘ling authorities that there is a sufficiency of proof on the
record for the jury to make the inference which it did that
petitioner was bitten by an insect which came from a
disease-producing filthy pool of stagnant water, improperly
‘- maintained by the respondent: on its premises under its
control, in which for. years it permitted dead pigeoris and
dead rats to accumulate and rot. There was. evidence for
the jury to conclude that these unsanitary conditions were
the producing cause of petitioner’s condition of ill-being.
By labeling the proof adduced in support of petitioner’s
claim of a causal connection as “speculation and conjec- ©
ture,” the Court of Appeals. did violence to the mandate
‘of this Court that the function of weighing the evidence -
to determine whether it meets the standard ofan infer-
‘ence is purely a function ofthe jury in this class of case.
To remove the cause from the consideration. -of the jury
by reason of a failure of the petitioner to eliminate other
sources for which the respondent might not be liable as an | :
éfficient-produting cause of’ the injury was in fact a
usurpation of petitioner’s rights under the Federal Consti-
tution as an employee in Interstate Commerce to a trial
by jury.’ The determination as to the right-to trial by jury
has been construed by this Court and required by it to
have uniform application throughout the United States.
The Court of Appeals itself having found evidence in the
record to support a finding of causal connection: between
the negligence complained of and the resulting injury had
under the law exhausted its function, Lavender v. Kurn,
supra. Its dutygthen became that of affirming ‘the judg-
ment entered by the trial court inasmuch as in every other
respect the Court of Appeals found n no error prejudicial to
the: appellant veanicorel
_
32
- RELIEF PRAYED FOR. .
_ By reason of the foregoing, petitioner respectfully
prays of this Court that his petition for writ ef certiorari
‘to the Court of Appeals for Cuyahoga County, Eighth
. Judicial - District of Ohio, be granted by the Supreme
Court of United States: that judgment be thereupon en-
tered by the Supreme Court of the United States as a re-
. versal of the judgment of the Court of Appeals of Cuya- |
hoga County; that this Court reinstate the verdict of the
Court of Common Pleas of Cuyahoga County in favor of
“petitioner entered upon the special verdict of the jury,
reduced to judgment in favor of petitioner in the sum of
Six Hundred Twenty-Five Thousand Dollars ($625,000.-
00), with interest accrued according to law; and that a
mandate issue by the Supreme Court of the United States
to the Court of Appeals for Cuyahoga County to accord-
ingly reinstate the judgment for petitioner.
A. H. Dupnx,
MarsHatt I. NURENBERG,
714 Engineers Building,
Cleveland 14, Ohio,
Attorneys. for Petitioner.
- Meyer A. Cook,
Of Counsel.
: 2
APPENDIX A.
bas cogenan of the Court of Appeals. :
‘No. 25,087. °
_ IN THE COURT OF APPEALS
Etcutu Jupicrau District.
_ STATE or Ouro, CuyaHoca Country, ss. °
._ JAMES GALLICK,
_ Appellee,
‘ Vv. ,
THE BALTIMORE AND.OHIO RAILROAD CO., .
Appellant.
OPINION.
HuNSICKER, J. i
‘ James. Gallick, an employee of Baltimore and Ohio
Railroad Co., brought an action.in the Common Pleas
*. Court of Cuyahoga County, Ohio, under the Federal Em-
' ployers’ Liability Act, alleging that he suffered injury be-
cause he was not furnished, by his employer, a reasonably -
safe place to work, arid was required to work under un-
healthful and unsanitary conditions.
Mr. Gallick, along with other employees of the Balti- |
more and Ohio Railroad Co., was engaged, over a period
(2) of time, at a place known as the “230 Seneca Street
job.” The location of the work was in the “flats” section of
Cleveland, Ohio, a highly-industrialized area adjacent to
the Cuyahoga River, a short distance south of the river’s
entrance into Lake Erie. Specifically, Mr.. Gallick, the
foreman of the railroad crew, along with others, spotted
cars to be moved into the yards, or. to industrial estab-
lishments. He was required, during the month of August,
34
1954, to walk along a B & O Railroad right of way, con- .
- sisting of one line which ran along the river near the.in-
‘dustrial plants serviced by such railroad.
_“. This railroad line passed under several bridges,
among which was the Columbus Street bridge.- Under
this bridge, on the east side of the railroad right of way,
was a ditch, which, for many years, contained stagnant
, water, both \in the dry and wet seasons of the year. In
“and about this. ditch were dead and decayed rats and
pigeons. Insects were seen on, over and about this. stag-
nant pool. The evidence shows that the condition of this
pool was known to the employees of the railroad for a
long time before the occurrence about which Mr. Gallick ©
complains.
Mr. Gallick, on or about the 10th p= of peer
- 1954, while walking along the west side of-the railroad
right of way, under and also near the Columbus. Street
bridge, stopped momentarily to see where the railroad:en- :
gine.was that (3) would pick up some cars. He then, took
a step or two, at which time he felt a bite on his left leg,
' a few inches above his left knee. He put his hand on the:
place where he felt this bite, and grasped between his
finger and thumb an object which he said felt like an in-
sect, and which, when squeezed, cracked or popped. This
- object, or insect, was inside his left trouser leg. When he
released the object it slipped out of his left trouser leg.
_ Before he could locate it, the engine was nearby, and he
-boarded one of the cars. Mr. Gallick said the object was
about as long as the width of three fingers, and as thick '
as his ligtle finger. The size of the insect was thus in-:
dicated to be about two inches long by one-half inch
wide.
/ Later that day, after his lunch period, about 7 o’clock,
p.m. (Mr. Gallick worked from 3 p.m. until 11 p.m.), he
35
7 went to the washroom; and, because he felt some sensa-
tion on the back on his left leg, he washed the place where —
he had felt the bite. When he arrived home after work,
he showed this place to his wife, who said it looked like
a bite, and ‘that it was pink on the top, and about the size
of a fingernail. It grew redder and larger, and, since it did
not heal, but broke open like a boil, Mr. Gallick went to
a doctor, several days after the alleged bite, who ad-
ministered penicillin and gave an ointment for dressing the
by-now open lesion.
(4) The wound did not respond to treatment, and
another doctor was consulted. The condition grew progres-
sively worse, until, after several years of hospital attention
by many, many doctors, examinations, tests and treat-
ments, including the amputation of both legs, Mr. Gallick is
_-permanently confined in a hospital suffering from many
severe pus-forming lesions on his body. .It was stated by
. one of the doctors who treated him that one arm may
have to be amputated to relieve the effect of a lesion in the
armpit. None of the doctors who have treated and studied
his case can give the etiology of his condition..
One hospital and some of the doctors state the con-
dition of Mr. Gallick to be "proderme-gangrences, sec-
ondary to insect bite.”
The trial of Mr. Gallick’s action against B. & O. Rail-—
road Company proceeded upon two claimed grounds of
negligence: first, “(4) In that it failed to provide pla‘n-
tiff with a reasonably safe place in which to perform his
work duties”; and, second “(6) In that it knew that, by
permitting said pool of stagnant water to accumulate dead |
pigeons, rats, bugs and vermin, insects would be attracted
- *t6 said area, and that its employees would have to work
under unhealthful and unsanitary conditions.”
te
36
Delimcce & Ohio Railroad Conpeny, tind cay
negligence on its part, said that, if the condition of Mr.
Gallick arose from an insect bite sustained by him while
working upon railroad property, “the likelihood of harm
and consequences” to Mr. Gallick from such bite “were
beyond the realm of reasonable probability or foresee-
ability, with the result that no duty arose requiring the
exercise of care by” the railroad “to protect” Mr. Gai
“from any such risk.”
After a lengthy trial, and the submission of the case
to a jury with a special verdict and numerous interroga-
tories, a judgment for $625,000 was entered by the Court
of Common Pleas.
From this judgment an appeal on questions of law
has been brought to this Court by Baltimore and Ohio
Railroad Co., which set out sixteen assignments of error,
as follows:
“1. The court erred in overruling defendant’s de-
murrer to plaintiff's petition.
“2. The court érred in reducing the seated panel
to 10 jurors by excusing two seated members of the
jury panel of twelve at the request of the two jurors,
‘after defendant had exhausted its four peremptory
challenges to such panel and plaintiff had not ex-
hausted its peremptories, and in proceeding further
with the remaining panel of 10 over defendant’s ob-
jection.
' “3. The court wat in limiting the jury’s view of
defendant’s premises and surrounding territory to a
very small part of the area which was relevant and —
pertinent to the issues in the case and about which
there was evidence presented at the trial.
. “4. The court erred in admitting evidence offered
by plaintiff over the objection of this appellant.
(6) “5. The court erred in overruling defendant’s
motion for judgment on the pleadings, and for a di- _
37
rected verdict at the close of plaintiff's case and at the
close of all the evidence.
: “6. The court erréd in refusing to give to the jury -
. before argument certain written requests to charge
submitted by this appellant. )
“7. The court erred in submitting to the j jury be-
fore argument certain special charges submitted by
the adverse party and objected to by th’s appellant.
“8. The court erred in its charge to the jury.
“9. The court erred in refusing to submit to the
jury certain special interrogatories to be answered
by the jury, as requested by appellant.
“10. The court erred in submitting to the jury an
improper, misleading, and incomplete special verdict.
“11. The court erred in entering judgment for
plaintiff upon the special verdict returned by the
jury, and in not entering judgment for the defend-
ant thereon.
“12. The court erred in overruling appellant's
motion for judgment notwithstanding the verdict.
“13. The court erred in overruling appellant's mo-
tion for a ney trial.
“14. The damages assessed by the jury in its spe-
cial verdict are excessive and appear to have been
given under the influence of passion and prejudice.
“15. The damages assessed by the jury are ex-
cessive and not sustained by the evidence.
. “16. Other errors occurring at the trial and in the
judgment.”
(7) We do not believe it necessary to discuss in detail
each of the assigned errors, but, since this matter is
brought under the Federal Employers’ Liability Act, our —
consideration of the problem posed by these assignments
of error must be controlled by the interpretation of such
act by the Supreme Court of the United States. Dice r.
38 :
Akron, Canton & Youngstown Rd Co., 91 O. App. 239;
Dice v. Akron, Canton & Youngstown Rd. Co., 342 U. S.
359; Harris v. Pennsylvania Rd. Co., 198 Oo. App. 541. |
_. “Under this statute [45 U.S. C. A., Sec. 51] the
test of a jury case is simply whether the proofs justify
with reason the conclusion that employer negligence
played any part, even the slightest, in producing the
injury or death for which damages are sought.”
Rogers v. Missouri Pacific Rd. Co., 352 U. S. 500,
at 506;77S.Ct.443. |
The usual concept: of proximate causation, as we
know it in the law of Ohio, is not to be applied in cases
such as we have herein, which arise under the Federal
Employers’ Liability Act. Rogers v. Missouri Pacific Rd.
Co., supra; Schulz, Admz., v. rn = Railroad Co.,
350 U. S. 523, 76 S. Ct. 608.
With these preliminaty and tundbonantit « statements
of the rules we must follow in determining the instant
case, let us examine the special findings of the jury: to see
what they found as to the determinative issues.
(8) The determinative issues may be briefly summa-
rized as follows: Is there some credible evidence to sup-
. port a finding of employer negligence? Did such negligence
play any part, even the slightest, in producing the “bite” .
suffered by Mr. Gallick? :
We are required, in examining the special finding ofa |
jury, to liberally construe the answers with a view to
ascertaining the meaning of such answers. Klever v. Reid
Brothers Express, Inc., et al, 151 O. S. 467, 86 N. E.: 2d
608: Elic v. Akron Transportation‘Co., 147 O. S. 363, 71
N. E. 2d 707.
' The rule announced by the ‘Supreme Court of the
United States, with reference to the effect of locab practice
rules, such as the interpretaticn of interrogatories, is found
"@
39
. 2
in Arnold v. Panhandle & Santa Fe Railway Co., 353 U. S.
360, 1 L. Ed. 2d 889, 77.S. Ct. 840, wherein that court said ~
that the assertion of federal rights, when plainly and
‘reasonably made, is not to be defeated under the name of
local practice.
There are inconsistencies in the answers to the special |
verdict and the interrogatories made by the jury in the
instant case. They did’ find, however, that the Baltimore
and Ohio Railroad Co. was négligent in maintaining the
stagnant pool by the side of its track. Although the jurors
stated that they could not answer the question as to Mr.
Gallick (9) being furnished a safe place to work, they did
find a cause and effect relationship between the stagnant
pool and the bug bite suffered by Mr. Gullick. After its af-
firmative answer to the proximate causal relatienship be-
tween the stagnant water, the dead rats, the dead pigeons,
the insect bite, and the present physical condition of the
_ plaintiT, the jury found no reasonable probability or fore-
seeability of the Baltimore and Qhio to appreciate this
proximate causal relationship between the stagnant water
and other conditions ns leading. to the present physical condi-
‘tion of Mr. Gallick.
Are such findings of the jury sufficient to sustain the
judgment? It is difficult to reconcile the several. pro-
nouncements of the Supreme Court of the’ United States -
with reference to the application of the Federal Employers’
- Liability. Act. A liberal attitude on the part of the court
majority is apparent, but an adherence to fixed principles |
is not readily discernible. 69 Harvard Review 1441.
In many of the cases which we-have examined, the
causative factor has been some tangible object owned by
the railroad, even though it was only gravel or an oversized |
“. cinder in the roadbed. Webb v. Illinois Central Rd. Co..,
352 U.S. 512, 1 L. Ed. 2d 503; Ferguson v. Moore-
ral
46
McCormack Lines, Inc., 352 U: S 521, 1 L. Ed. 2d.511;
Lavender, Admr., v. Kurn, et al., 327 U. S. 645, 90 L. Ed.
916. = | .
(10) In the instant case. as well as in Sentilles v.
Inter-Caribbean Shipping Corp., 361 U.S. 107, 4 L. Ed 2d
142; Schulz, Admx., v. Pennsylvania Rd. Co., 350 U. S.
523, 100 L. Ed. 668; and Inman v. Baltimore & Ohio Rd.
. Co., 361 U.S. 138, 4 L. Ea. 2d 198. that which caused the
injury was an outside force. such as _uriusual wave. ice
on a boat, or a third person.
Through all these cases there runs the underlying
general principle that, before a plaintiff may recover dam-
ages, there must be proof of some causal relationship be- .
tween the employer negligence and the injury or death of
the workman.
In Tennant, Admx., v. Peoria & Pekin Union Ry. Co..
321 U. S. 29, 88 L. Ed. 520. the court said:
“In order to recover under the Federal Raieiection’
Liability Act, it was incumbent upon petitioner to
prove that respondent was negligent and that such
negligence was the proximate cause in whole or in
_ part of the fatal accident. Tiller v. Atlantic Coast Line
_ R. Co., 318 US 54, 67, 87 L. ed. 610, 617. 63 S. ” ‘444,
143 ALR 967. :
_. “Petitioner was required to present suckiaune fac :s
from which the negligence and the causal relation
could reasonably be inferred. “The essential require-
ment is that mere-speculetion be not allowed to do
duty for probative facts, after making due allowance
for all reasonably possible inferences favoring the —
party whose case is attacked, Galloway ’v. United
States, 319 US 372. 395, 874.. ed. 1458, 1473, 63 S. Ct.
1077; Atchison, T. & S. F. R. Co. v. Toops, 281 U.S.
351, 74 L. ed. 896, 50 S. Ct. 281.”
In the recent case of Inman v. Baltimore & Ohio Rd.
(11) Co-, 361 U.S. 138. 4 L. Ed. 2d 198. the court. after cit-
| 4) I\
ing with approval the case of Rogers v. Missouri Pacific Rd
Co., 352 U. S. 500. 1 L. Ed. 493. said: “The Act does not
make the employer an insurer.” ‘_
. In the Rogers v. Missouri Pacific Rd. Co case. supra,
there is an apparent reversal by the court of its position —
stated in Tennant, Admzx., v. Peorta Pekin Union Ry Co.. .
supra, and quoted above. wherein a “proximate cause in
whole or in part” is necessary before recovery by an in-
jured employee of the railroad. In the Rogers vr. Missouri
Patific Rd. Cv. case, the court. after rejecting the rule of
‘proximate causation, said, with regard to this question,
* © * That is ‘language of proximate causation:
which Makes jury question dependent upon whether
the jury may find that the defendant's negligence was
the sole, efficient, producing cause of injury.
~ “Under this statute the test of a jury case is simply
whether the proofs justify withreason the conclusion
that employer negligence played any part. even the
slightest, in producing the injury or déath for which
damages are sought. It does not matter that. from the
evidence, the jury may also with reason. on grounds of
probability, attribute the .result to other causes. in-
cluding the employee's contributory negligence. Judi-
cial appraisal of the proofs to determine whether a
_ jury question is presented is narrowly limited to the
single inquiry whether. with reason. the conclusion
may be drawn that negligence of the employer played
any part: at al] in the injury or death. Judges are to
fix their sights primarily to make that appraisal! and.
“ if that test is met, are bound to find that a case for the
jury ‘is made out whether or not the evidence allows
the jury a choice of other probabilities. The statute
expressly (12) imposes liability upon the employer to
pay es for.injury or death due ‘in whole or
in part. to ‘negligence. (Emphasis added. )
“The law was enacted because the Congress was
dissatisfied with the common-law duty of the master
; — oe |
to his servant. The statute supplants that duty with
the far more drastic duty of paying damages for injury
or death at work due in whole or in part to the em-
ployer’s negligence.
“The employer is stripped of his common-law
_ defenses and for practical purposes the inquiry .in
_ these cases today rarely presents more tha. the
single question, whether negligence of the employer
played any part, however small, in the injury or death
which is the subject of the suit. The burden of the
employee is met, and the obligation of the employer to
pay damages arises, when there is proof, even though
" entirely circumstantial, from which the jury may with
reason make that inference.” ;
We do know by overwhelming ‘ilies that the pool
of stagnant, vermin-infested water was alongside the Balti- ~—
more ‘and Ohio tracks for many years prior to. the lt al
“bite” suffered by Mr. Gallick. We know, by definite evi- -
dence, that insects were in and about this stagnant pool.
There is a conflict in the testimony (resolved against Balti- ©
more aid Ohio) as to whether any insect of the size de-
scribed by the-injured employee might infest this pool,
-and which insect might “bite”:a man. a A
We have sufficient credible evidence to conclude.: as
did the jury, that Mr. Gallick suffered a “bite” on railroad
property by some insect while working for that railroad.
We have an abundance of -testir-ony that from such “bite”
severe consequences to Mr. Gallick have ensued.
_ (13) We can, with reason, say that, to maintain for a
period of years a stagnant, vermin-infested: pool of water
on and over which insects gather, on property where its
employees are required to work, could furnish the grava-
men of an offense. under the Federal Employers’ Liability
‘Act. ;
No similar “bite” or other insect bites were ever com- |
plained about, although complaint about the general un- —
v4
« that this undescribed (except as to size and biting quali-
43 . . )-*
sanitary condition at the location of the pool was made to
the railroad. :
Throughout all the cases involving employer, liability,
in cases such as we have before us, the United States Su-
preme Court has held that a right to recover is established
if, from the facts proved, negligence and its causal relation-
. ship to the injury and damage may reasonably be inferred;
a jury question is presented: if, with reason, “the conclu-
sion may be drawn that negligence of the employer played
any part at all in the injury.”
From the facts heretofore set forth, it. is obvious that
the plaintiff's case, if it is to be sustained, must rest upon
inferences to be drawn from the evidence. There is no
direct evidence that the existence of the unidentified bug’
at the time and place had any connection with the stagnant
and infested pool. 7 © :
We observe that proof is the effect of evidence—the
establishment of a fact by evidence—and in in Jitigation (14)
there thay be evidence which does not amount vo proof,
When there is neither direct evidence; nor reasonable in-
ferences to be drawn from evidence, whether direct or cir-
cumstantial, a conclusion based upon such absence of evi-
dence or reasonable inference is mere conjecture, and the
drawing of a further inference from conjecture does not
amount to proof. In proving a defendant's culpability. the
proof must show that the tort is distinctly traceable as one
of the efficient antecedents of the damages. and has a share
in subjecting plaintiff to injury. ’
The observation made above refers only to legal cause.
We are not here concerned with cause in the so-called
“philosophic sense,’ for the reason that the causes of
, Causes are infinite.
If the plaintiff's case is to be sustained. we must infer
\
\
a4
ties) insect-or bug had been attracted to the area in which
the plaintiff was hurt by the stagnant pool, and that its bite
_caused the plaintiff's condition; that the pool created con-
ditions and influences| which helped to incubate or furnish
an environment for the bug, whose bite was poisonous to
the plaintiff; or, that the insect, having traveled from other |
areas, became contaminated or infected by the pool with a
substance injurious to man, and that this substance in-
fected the plaintiff when bitten.
. .(15) The law.is plain that, before the sesh of cau-
cntinn can be submitted to a jury, the trial judge must de-
- cide a preliminary question—i.e., whether from the -evi-
dence jury’ could reasonably find the existence of a causal ,
relation. If the judge decides in the affirmative, it will then -
be for the jury to say whether they do find. In other words,
the judge must say whether on the evidence, a causal rela-
’ tion may be reasonably inferred. If the judge rules that it
may be so inferred, the jurors then must say ‘whether,
from the evidence, the causal relation is inferred by them.
The question of.causation should not get to the jury,
and the judge should direct a verdict for the defendant,
unles$ the court is of the opinion that a jury can reason- .
ably find that the defendant’s tort was an efficient cause of
the damage to the plaintiff and not a mere untecedent fact.
As we view the record before us,’ we have a chain of
possibilities that the negligence of the defendant might
‘have shared in subjecting the plaintiff to damage and in-
jury, but the proof of a legal causal connection between
the negligence and damage falls short of se required for
' the consideration of a jury.
Whether the insect causing the damage had any con-
nection with the ‘pool of stagnant water on the defend- |
ant’s premises, or whether it came from the nearby putrid
mouth of the Cuyahoga River, or from weeds, or unsani- _
.@
\
a S
45 on
tary places situated (16) on property not owned or control-
led by the railroad, presents only a series of guesses and
speculations, which speculations make a chain of eausation
too tenuous to support a conclusion of liability on the part
_of the-railroad. ©
We determine, therefore, that, where there is, as here,
only a guess or speculation of a causal connection between
the negligence of the employer and the injury of an em:
‘» ployee, no liability attaches, and a judgment based upon
such speculation cannot be sustained.
All other claimed errors have been examined, and we
_ find none ‘prejudicial to the rights of the appellant.
The judgment herein is reversed as contrary to law,
and final judgment will be entered for the a
lant.
Reversed and final judgment her the appellant.
‘Doyvte, P. J., ‘and GriFFITH, J.; concur.
‘ ( Doyle, P. J., and Hunsicker, J., of the Ninth District,
and Griffith, J., of the Seventh District, sitting by designa-
_ tion in the Eighth District.):
APPENDIX B.
Journal Entry of the Court of ——
April 11, 1961:
This day this cause, having been previously consoli-
dated with case No. 25,017, came on to be heard upon ap-
peal on questions of law, assignments of error, bill of ‘ex-
egptions, pleadings, transcript of the docket and journal
entries in the Court of Common Pleas of Cuyahoga County,
Ohio, and briefs, and was argued by counsel and submitted |
_ _ to the Court.
46 |
_ Upon consideration whereof, this Court finds that in
‘the record and proceedings aforesaid there is error mani-
fest upon the face of the record to the prejudice of the ap-
pellant, in that the Court of Common Pleas erred:
_ (1) In overruling appellant’s motion for a di-
‘. srected verdict at the close of all the evidence.
(2) In overruling appellant’s\ motion for judg-
3 ment notwithstanding the verdict. \ Z
and in that said Court entered judgment for appellee when. .
such ae should have been entered for the appel-
+ lant.
_ It is therefore considered, ordered, and adjudged by
this Court that the judgment of the Court of Common
«Pleas of Cuyahoga County be and the same is hereby re-
versed and held for naugh d the Court comiag now to
render the jud which the Court of Commop Pleas of
Cuyahoga County ought to have rendered, final judgment
is now entered in this Court for the appellant. |
It is further ordered that this cause be remanded to
‘the Court of Common Pleas of Cuyahoga County, Ohio,
- to carry this judgment into effect-and for execution; and
that the appellant recover from the appellee its costs here-
in expended, ‘taxed at $. _._._ ___. To all of which, ap-
" pellee, by counsel, excepts. _ | |
All other claimed errors have been examined, and
this Court finds none prejudicial to the rights of the ap-
pellant. To which appellant, by’ counsel, excepts.
.
47
APPENDIX C.
Journal Entry of the Court of Common Pleas.
The Court finds that the jury in the within cause was
duly impanelled and sworn; that proper request was made
to the Court by the defendunt for a special verdict as pro-
vided by law; and that a special verdict was returned -
the jury.
The Court further finds that the photographic copies
annexed hereto as Exhibits “A; B, C, D, E, F, G, H, I, J,
K, L, M, N, O, P,Q, R, S, T, U, V, W” are an exact repro-
duction of the original special verdict returned by the jury
‘and made a part of the record of the within case; and that
said Exhibits annexed hereto as Exhibits A through W
constitute the verdict of the jury.
The Court being fully satisfied that Exhibits A through
W annexed hereto constitute the verdict of-the jury, the
Court hereby incorporates the same by reference as part
of this Journal Entry as though expressly rewritten herein.
The Court further finds that proper request was made
by the defendant for the submission of a separate finding’
of fact by the jury and that Exhibit “X” annexed hereto
is an exact photographic copy of the finding of: fact of the
jury. The Court therefore incorporates Exhibit “X’’ as
annexed hereto as a part of this Journal: Entry as though
expressly rewritten herein.
The Court being of the opinion that the special verdict -
of the jury as referred to.and incorporated within this
Journal Entry and annexed hereto as Exhibits A through
W is sufficient in law to require a judgment for the plain-
tiff; and the jury by said special verdict having found that
plaintiff's damages are Six Hundred Twenty-Five Thou-
sand Dollars ($625,000.00); and the Court being of the
opinion that the finding of fact of the jury, as referred to
: ; ¥ \ 48 . - 7
and incorporated within this Journal Entry and. annexed
hereto as Exhibit.““X” is consistent with the verdict of the —
jury; it is hereby ordered that plaintiff recover of the de-
fendant the said sum of Six Hundred Twenty-Five Thou-
_-sand Dollars ($625,000.00), for which sum, with the costs
of this action, judgment is hereby rendered ‘in favor of |
plaintiff and against the defendant. ,
oN Special Verdict.
’ Exuisit A.
We, the jury, being first duly impanelled ond sworn
and .heing three-fourths or more of the whole number
thereof, do find by the greater weight of the evidence, the
following determinative issues in this cause:
1,..Did' a pool of stagnant’ water exist under the
Columbus Road Bridge during. the entire early part of
August, 1954? Yes.
~ (Names of twelve jurors omitted.)
v
ExuIsIT B.
_ We, the jury, being first duly impanelled and sworn
and being three-fourths or more of the whole canine
thereof, do find by the greater weight of the evidence the
‘following determinative issues in this cause:
_2. Was the pool of stagnant water on the premises of
the defendan. B. & O.? Yes.
_ (Names of twelve jurots omitted. )
ne | Exuisit C.
‘We, the jury, being first duly impanelled and sworn,
and being three-fourths or more of the whole number
| 49
thereof, do find by the greater weight of the evidence the
following determinative issues in this cause:
3. If the answer to 2 is yes, was the.defendant B. &
O., in possession of the premises’ under the Columbus
Road Bridge whereon the stagnant water stood? Yes.
(Names of twelve: jurors omitted.)
aon
Exuisit D.
We, the jury, being first duly impanelled and sworn,
and. being three-fourths or more of the whole number
thereof, do find by the greater weight of the evidence the
following determinative i issues in this cause: .
' 4. Did the defendant B. & O. have under its control
the premises under the Cclumbus Road Bridge whereirt
the stagnant water stood? Yes. .
(Names of twelve jurors emitted. )
EXHIBIT E.
We, the jury, “being first duly impanelled aad sworn,
and being three-fourths or more of the whole number
thereof, do'find by the greater weight of the evidence the
en determinative issues in this cause:
_ ” §. If the answer to question No. 2 is yes, did ‘deed
pigeons accumulate under the bridge -in the stagnant
water? Yes. ; ye
| er of ten jurors omitted. )
EXHIBIT F.
'. We, the jury, being first duly ienpanelled and sworn,
and being three-fourths or more of .the whole number
thereof, do find by the greater weight of the evidence the
following determinative issues in this cause:
cod
| 50
6. If the answer to No. 2 is yes, did dead rats accu-
mulate under the bridge in the stagnant water? Yes.
(Names of nine jurors omitted. )
Exnisit G.
We, the jury, being first duly impanelled and sworn,
and being three-fourths or more of the whole number
thereof, do find by the greater weight of the evidence the .
following determinative issues in this cause:
. . 7. If the answer to No. 2 is yes, did vermin accumu-
’ late under the bridge in the stagnant water? Yes.
(Names of twelve jurors omitted.)
Exnisit H.
We, the jury, being first duly impanelled and sworn, —
and ‘being three-fourths or more of the whole number
thereof, do find by the greater weight of the evidence the
following determinative issues in this cause:
8. If the answer to No. 2 is yes, did bugs accumulate
under the bridge in the stagnant water? Yes. .
(Names of twelve jurors omitted.)
Exurert I.
We. the jury, being first duly impanelled and sworn,
and being three-fourths or more of the whole number
thereof, do find by the greater weight of the evidence the
following determinative issues in this cause:
9. Was plaintiff required to perform his work duties
~ in close proximity to the area referred to in question No.
1? Yes. , :
(Names of twelve jurors omitted.)
51
Exuisit J.
We, the jury, being first duly impanelled and sworn,
and being three-fourths or more of the whole number
_thereof, do find by the greater weight of the evidence the
following determinative issues in this cause:
10. On approximately August 10, 1954, was —-
bitten by an insect? Yes.
(Names of twelve jurors omitted.)
Exnisit K. —
We, the jury, being first duly impanelled and sworn.
and being three-fourths or more of the whole number
thereof, do find by the greater weight of the évidence the
following determinative issues in this cause:
11. If the answer to ‘Question No. 10 is yes, was he
bitten while-performing his usual and customary work
duties? Yes.
(Names of twelve jurors omitted.)
Exuisirt L.
We, the jury, being first duly impanelled and sworn,
and being three-fourths or more of the whole number
thercof, do find by the greater weight of the evidence the
- following determinative issues in this cause:
12. If the answer to No. 10 is yes, was he bitten near
or about the Columbus Road Bridge? Yes.
~ (Names of twelve jurors omitted.)
Exuisit M.
We, the jury, being first duly impanelled and sworn,
and being three-fourths or more of the whole number
52
thereof, do find by the greater weight of the evidence the
following determinative issues in this cause:
13. Did the defendant B. & O., provide the plaintiff
Mr. Gallick, a reasonably safe place to-work under the:
facts and circumstances existing at the time?
Jury can’t decide on this question.
, ExuisiT N. |
We, the jury, being first duly impanelled and sworn,
and being three-fourths or more of the whole number
_ thereof, do find by the greater weight of the evidence the
following determinative issues in this cause:
14. If the answer to question 1 is yes, did the deferid-
ant B. & O. know that by permitting the accumulation of
said pool of stagnant water, dead pigeons, dead rats, bugs -
and vermin would be attracted to said area? Yes.
(Names of ten jurors omitted.)
Exuisit O.
We, the jury, being first duly impanelled and sworn,
and being three-fourths or more of the whole number
thereof, do find by the greater weight of the evidence the
following determinative-issues in this cause:
15. If the answer to 14 is yes, did the dulcis
B. & O. know that its employees would have to work, in
this area? Yes. .
(Names of ten jurors omitted.)
Exnisrt =;
We, the’ jury being first duly impanelled and sworn, |
and being. three fourths or more of the whole number
thereof, do find by the greater weight of the evidence the ©
following determinative issues in this cause:
o3
16. Was the defendant negligent in one or more re of the
particulars alleged i in the petition? Yes.
(Names of twelve jurors omitted.)
_— Q.
We, the jury being first duly impanelled and sworn,
and being three fourths or more of the whole number -
thereof, do find by the greater weight of the evidence the
_ following determinative issues in this cause: |
17. If the answer to Question 16 is yes, indicate in
the words of the petition the acts or omissions which
constitute defendant’s negligence. |
There existed a pool of stagnant water on premises in
the possession of and under the control of defendant into
which was accumulated dead pigeons, rats and various
- forms of bugs and vermin.
(Names of ten jurors omitted.)
ExHIsIT R.
We, the jury being first duly impanelled and sworn,
and being three fourths or more of the whole number
thercof, do find by the greater weight of the evidence the
following determinative issues.in this cause:
18. Was the illness or disease from which Mr. Gallick
now suffers caused in whole or in part by an insect bite
sustained by him on defendant B & O’s premises? Yes.
&
(Names of twelve jurors omitted.)
Exuis!Ir S.
.We, the jury, being first duly impanelled and SWOTti, |
‘and being three fourths or more of the whole number
thereof, do find by the greater weight of. the evidence the
following determinative issues in this cause:
54 7
_ 19. Were the injuries to the plaintiff proximately
caused in afiy part, even the slightest, by any one or more .
of the acts or omissions of ihe defendant? . Yes.
(Names of ‘twelve jurors omitted.)
, ‘Exnistt T.
‘We, the jury, being first duly impanelled and sworn, |
and being three fourths or more of the whole number
thereof, do find by the greater weight of the evidence te
following determinative issues in this cause:
20. .If the answers to any one of the questions num-
jered 1, 5,6, 7, and 8, is yes, was there any reason for the
defendant B. & O., to anticipate that such would. or might
probably result in a mishap or an injury ?, No.
(Names of ten jurors omitted. ».
Exuisit U.
: We, rane jury, being first duly ee and sworn,
and being three fourths or more of the whole number
thereof, do find by the greater weight of the evidence me
following determinative issues in this cause:
21. Was there a proximate causal relationship to the
stagnant water, the dead rats, the dead pigeons, the insect .
_ bite and the Present physical condition of the plaintiff?
Yes.
—— of twelve jurors omitted.)
Exnisit V.
2 We, the jury,-being first duly impanelled and sworn,
and being three fourths or more of the whole number
- thereof, do find by the greater weight of the evidence the
folluwing determinative issues in ‘this cause: : °
55 .
22. If the answer to Question 21 is yes, was it within
the realm-of reasonable probability or foreseeability of the
defendant B. & O. to appreciate this proximate causal rela-
tionship between the stagnant water, the dead rats, the
déad pigeous, the insect bite and the present physical con-
dition of the plaintiff? No.
(Names of twelve jurors omitted). @
EXHIBIT Ww.
We, the jury. being first duly impanelled and sworn,
and being three fourths or more of the whole number
. thereof, do find by the greater weight of the evidence the
following determinative issues in this cause: ;
23. What amount of money will compensate the plain-
tiff, James T. Gallick, for his injuries and damages,. if any,
resulting proximately from this accident?
$26, 000.00.
(Names of twelve jurors omitted. a
Exner X. a
_ Interrogatories. wok
. '5(a) Where on plaintiff's body: was his first skin
infection?” x |
°
Answer: Back of left leg: approximately 4” above
* knee—more to the outside.
(Narnes of twelve jurors omitted.)
56
_ APPENDIX D. |
Orders of the Supreme Court.
Dec. 6, 1961: & | .
This cause, here on appeal as of right from the Court
of Appeals for Cuyahoga County was heard in the manner
prescribed by law and upon motion of the appellee to dis-
. miss such appeal.
On consideration thereof, ona appeal is emisiad for .
the reason that no debatable constitutional question exists
i“ Prrein.
It is further ordered that the defendant-appellee re-
cover from, the plaintiff-appellant its costs herein ex-
pended; that a mandate be sent to the Court of Common
Pleas to carry this judgment into execution; and that a
copy of this entry be certified to the Clerk of the Court of
Appeals for Cuyahoga County for entry. | :
Motion for an Order Directing the Court of Appeals for
‘ _ Cuyahoga County to Certify its Record.
Dec. 6, 1961: “ a
‘It is — by the Court that this motion is over-
ruled. } Y
Cross Motion for an Order Directing ihe Court of Appeals
for Cuyahoga — to — its —
Dec. 6, (1961: . ‘ (
It is ordered by the Court that this. motion is over- -
ruled.
4
57 : ‘a?
THE SUPREME COUR‘ F OHIO
¢ Cotumsus/ een
- January 10, 1962
Mr.A.H.Dudnik §—__= :
Attorney at Law\ ils
Engineers Building ne
Cleveland, Ohio ee
Re: James Gallick, appellant, v. The Baltimore and
Ohio Railroad Company,.appellee
Case No..37218
Dear Mr. Dudnik:
We are directed by the Supreme Court to advise coun-
sel in this case that the Court has considered the applica-
tion for rehearing, filed therein, and that a rehearing is
denied. _ ; e
Sincerely yours, »
- 2 | : _ Joun McConne vt.
38
’ APPENDIX E.
Statutes Involved.
Title 45, U. S. C., Section 51.
Every common carrier by railroad while engaging in
- coinmerce 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 sufferin 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 injury
or death resulting in whole or in part from the negligence
of any of the officers, agents, or employees of such carrier,
or by reason of any defect or insufficiency, due to its neg-
ligence, 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 commerce; or shall, in any way directly or closely
and substantially, affect such commerce as above set forth
shall, for the purposes of this chapter, be considered as
being employed by such carrier in such commerce and
_ shall be considered as entitled to the benefits of this chap-
~ ter. Apr. 22, 1908, c. 149, § 1. 35 Stat. 65; Aug. 11, 1939,
c. 685, § 1, 53 Stat. 1404. |
59
Tithe 45, U. S. C., Section 56.
No action shall be maintained under this chapter un-
less commenced within three years from the day the cause
of action accrued.
Under this chapter an actiéfi may he 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 commencing such action. The jurisdiction
of the courts of the United States under this chapter shall -
be concurrent with that of the courts of the several States.
Apr. 22, 1908, c. 149, § 6, 35 Stat. 66; Apr. 5, 1910. « 143
§ 1, 36 Stat. 291; Mar. 3, 1911, c. 231, $291, 36 Stat. 1167. °
Aug. 11, 1939, c. 685, § 2, 53 Stat. 1404: June 25. 1948.
_ ¢. 646, § 18, 62 Stat. 989. |
Ohio Revised Code, Section 2315.15.
When requested by either party, the court shall direct
_ the jury-to give a ‘special verdict in writing, upon any
issues which the case presents.
Ohio Revised Code, Section 2315. 16.
When either party requests it, the court shall instruct
the jurors, if they render a general or special verdict, spe-
_ Cially find upon particular material allegations con-
‘tained in the pleadings controverted by an adverse party.
and submitted by the-court in writing, ‘to the jury, and
shall direct the jury to return a written finding thereon
. The verdict and: finding“ nust be entered on the journal |
‘and filed with the clerk.
+ Ohio Revised Code, Section 2315,17.
When a special finding of facts is inconsistent with the
seneral verdict, the former shall contro] the latter, and
the court may give judgment accordingly.
60
APPENDIX F._
* Amended Petition:
es No. 697;202:
IN THE COURT OF COMMON PLEAS
’
STaTE oF Ouro, County or CUYAHOGA, SS. |
- JAMES GALLICK,
. Plaintiff,
| vs. |
THE BALTIMORE AND OHIO RAILROAD CO.,
Ps Defendant. | 3
AMENDED PETITION.
Now cames the plaintiff and after having dyly ob-
tained leave-of court files this his amended petition. Plain-
tiff for his cause of action says that at all times herein al-
leged the defendant was and is a railroad corporation;
organized and existing under the laws of the State of
Maryland, and was. at the time of the occurrence herein
set forth and is’now carrying on its business as an inter-
state common carrier of passengers and freight within the
jurisdiction of this court; that at al’ times herein alleged,
plaintiff was and is a resident of the City of. Parma, County
of Cuyahoga and State of Ohio, employed by the defendant
as a Yard Foreman, in which capacity the plaintiff was |
engaged in the movement, switching and classification of
freight cars‘on tracks of the defendant located in the vi/
cinity of Lime Road and the Columbus Road Bridge in the
City of Cleveland, County of Cuyahoga, State of Ohio; that
the action of plaintiff is brought under, and is governed by
the provisions) of the Federal Employers’ Liability Act,
P 61 ‘
45 USCA, Sections 51-59 and Amendments thereto; that
the work duties of: the plaintiff at all times herein alleged
_substantially affected“and were in furtherance of inter-«
state commerce.
Plaintiff further says “that in the month of August,
1954, the exact date and time being uncertain, he was en-
gaged in the performance of his duties involving the move-
ment, switching and classification of railroad freight cars
at defendant’s tracks located in vicinity of Lime-Road and
the Columbus Road Bridge in the City of Cleveland,
' County of Cuyahoga, State of Ohio; that in close proximity
to said tracks in August of 1954, and for’a long time prior
thereto to.the knowledge of the defendant, ss existed a
pool of stagnant water on premises in the poss@S8ion of and
under the control of defendant into which was accumu-
lated dead pigeons, rats and various forms of bugs, lice and
vermin; that plaintiff was required to perform his work
duties in close proximity to said area; that in the month of
August, 1954, while performing his usual ahd customary
work duties in and about the Columbus Road Bridge and
Lime Road tracks of defendant; the plaintiff was bitten by.
an insect following which he. developed Serious, painful
and disabling injuries as will be ‘described hereinafter.
Plairftiff further says that the defendant was negli-
gent in the following respects:
1. In that it required plaintiff to perform his
work duties in close proximity to an area which was
known by the defendant to be infested with dead ,
pigeons, rats, bugs, lice and vermin.
2. In that it failed to drain said stagnant poo] of
water which would have eliminated the hazard to the
health. of the employees compelled to work in the
vicinity of said area and more Particularly, this plain-
tiff. | a
Cae
Y iin
62
3. In that it failed by the use of chemicals or
otherwise to eliminate from the said area where plain-
tiff was required to work the’ dccumulations of dead
‘pigeons, rats, bugs, lice and vermin, although it knew
of said condition which existed for many years —
to the injury to plaintiff.
4. In that it-failed to provide plaintiff with. a
reasonably safe piece in which to perform his work
duties.’ °
5. In that it failed to hensat and spray the po
freight cars being moved, switched or classified in
the vicinity on the track of the defendant near Lime ae
Road and the Columbus Road Bridge to rid the same
of insects, bugs, lice and vermin. : -
| 6. In that it knew that by permitting said pool of
stagnant water to accumulate dead pigeons, rats, bugs,
and vermin, insects would be attracted to said area,
and that its employees would have to work under un-
healthful and unsanitary conditions.
. Plaintiff further says that by means of and in con-
sequence of the foregoing negligent acts and omissions of.
the defendant, and as the direct and proximate result
thereof, he was’caused to be bitten by an insect which
caused his system to become poisoned.and which re-
sulted in-the formation of deep, acute ulcerations with
draining about his extremities and body, which condition
has not abated with time.
Plaintiff further says that as a result of his injuries,
it had been necessary for him to undergo extensive’ hos-
' pitalization, medical care and attention, and surgery, for
all of which he has sustained expense, the full extent and
amount of which is, as yet, unascertainable inasmuch as
plaintiff is receiving medical care and attention and hos-
pitalization at the time of filing this, his amended petition.
Plaintiff further says that his injuries have necessi-
tated surgery for the amputation of both legs, that he is
&
63
confined to his hospital bed and a wheel chair and will
remain so into the indefinite future. -
: Plaintiff further says that his injuries have- caused
_him to suffer an extreme weight loss and necessitated that
he consume large quantities of narcotics in an = to
relieve his pain. .
Plaintiff furffier s: says that as a result of his injuries, he
has suffered and will suffer permanently from pain, great
- mental angvish, extreme nervousness;-ani inability to ob-
tain normal rest, weight loss, cosmetic disfigurement, an
inability to get about. and extreme worry, Brief and
anxiety. °
- Plaintiff further. says en his injuries have rendered
him an invalid and that he needs constant care and at-
tention to his person. ;
Plaintiff further says that prior to the foregoing oc-
currence, he was regularly employed, earning and capable
of earning substantial wages but that as.a result of his
‘injuries, as aforesaid, he has ‘been rendered totally in-
capacitated from resuming his railroad occupation or. any “
_other gainful occupation which condition will continue
into the indefinite future. -
By means of and in consequence of which plaintiff
has been injured and damaged in the sum of Seven Hun-
dred Fifty Thousand Dollars ($750,000.00).
Wuereror:, plaintiff prays judgment from the de-
fendant herein in the sum of Seven Hundred Fifty Thou-
sand Dollars ($750,000.00).
, ~ - A. H, Dupnik,
Meyer A. Cook,
’ Attorneys for Plaintiff.
| 64
Answer to Amended Petition.
First DEFENSE.
Now comes defendant and for its first soparate de-
fense to plaintiff's amended petition admits that it is a rail-
road: corporation organized and existing under thé laws
of the State of Maryland, and maintains certain tracks in
the vicinity of Lime Road and the, Columbus Road Bridge
in the City of Cleveland, Ohio; admits that during the
month of August, 1954, plaintiff was employed by de-
_ fendant in the capacities of yard foreman and yard helper,
engaged in the movement, switching, and classification of —
‘freight cars over certain tracks of defendant located in.
the City of Cleveland; admits that plaintiff's cause_of
. action is brought under the provisions of the FederalEm-
ployers’ Liability Act, 45 U.S. C. A. §§ 51-59, as amended;
and admits that plaintiff's duties as yard foreman and
. yard helper were in furtherance of interstate commerce.
Not intending to deny that plaintiff may have been:
required in the course of his duties as yard foreman or
yard helper to be present from time to time during the
month of August, 1954, at or near the tracks of defendant
which are located in the vicinity of Lime Road and the
Columbus Road Bridge, or that plaintiff has suffered from
a serious and painful disability subsequent to August,
‘ 1954, plaintiff does deny for lack of knowledge that there .
- existed at that - ‘time a pool of stagnant water or other —
— condition for which the defendant was re-
ible in the vicinity of its tracks at-Lime Road and 7.
th Columbus Road Bridge; denies that .plaintiff’s illness
or disease was proximately caused or contributed to by
_ the negligence of this defendant, its agents, servants, or
employees, either in the. respects alleged ir. the amended
petition or in any other manner, and specifically denies
65
the existence of any connection whatsoever between the
condition of defendant’s tracks and roadbed and the insect
bite allegedly sustained by plaintiff while employed as a
yard foreman or yard helper for defendant during the
month of August, 1954.
Further answering, defendant says that if it be true
that the illness or disease from which plaintiff now suffers
was caused or contributed to by an insect bite sustained
by him on defendant’s)premises or elsewhere, the likeli-
hood of harm and consequences to plaintiff therefrom.
were beyond the realm of reasonable probability or fore-
seeability, with ‘the result that no duty arose requiring
the exercise f care by defendant to protect plaintiff from
any such ri d defendant further says that if it should
be found that such risk should have been foreseen by this
defendant, no reasonable method or means was available
to it which could have eliminated, controlled, or. appre-
ciably reduced the numbers or types of insects in and about
its premises. |
Further answering, defendant denies each and every
ret contained in plaintiff's amended petition save
and except those hereinabove expressl¥ admitted to be
true. eo fae. ; ‘
SEcoND DEFENSE.
‘
For its second separate defense to plaintiff's amended -
petition, defendant incorporates herein by reference and
makes a part hereof the preceding portions of this its
answer and says that if it should be found that plaintiff's
disability was caused in whole cr ix. part by the negligence
of this defendant, which defefidant specifically denies,
then neither said-disability nor the insect bite which is
- claimed. to. have occasioned it ‘constitutes an “injury”
&,
66 '
‘within the meaning of the Federal Employers’ Liability
Act, arid that plaintiff may not recover in this action.
Wuererore, having fully answered, defendant prays
that plaintiff’s amended petition be dismissed and that it
hesiad go hence with its costs without day.
BAKER, Hostetier & PATTERSON, -
' Attorneys for Defendant.
| Reply. |
._ For his Reply to the Answer of the defendant to
plaintiff's Amended Petition, plaintiff denies each and
every fact, statement: and allegation contained therein
save and except such as are an admission of a fact, state-
ment or allegation contained in the Amended Petition of
Plaintiff. a r
For his further Reply plaintiff re-alleges and re-avers
the facts, statements and allegations contained in his
Amended Petition, and prays for judgment as in his
Amended Petition he has’ prayed.
. A. H. Dupwix, eee
Attorney for Plaintiff.
v
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