Opposition Brief — Benson v. Missouri-Kansas-Texas Railroad

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| SEP 29 }947

CHARLES ELBORE . cori ry

nation nats

IN THE

Supreme Court of the United States

OCTOBER TERM 1947

No. 321

LELA MAE BENSON, ADMINISTRATRIX, Petitioner

vs.

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS,

Respondent

BRIEF OPPOSING PETITION FOR WRIT OF

CERTIORARI

G. H. PENLAND

Y M. E. CLINTON

¥ O. 0. ToucHsTonE

Attorneys for Respondent

1108 Magnolia Building

Dallas 1, Texas

TOUCHSTONE, WIGHT, GORMLEY & TOUCHSTONE

Of Counsel.

E. Duncan & Co., Brief Printers, Dallas

BEST COPY

AVAILABLE

PUBLISHER ‘S NOTICE

the best copy available to publisher.

INDEX

REPLY TO THE PETITIONER’S STATEMENT

WITH REFERENCE TO THE NATURE OF

THE CASE AND SUMMARY OF THE MAT-

TER INVOLVED (pp. 9-31 of the Petition)

JURISDICTION (p. 31 of the Petition) .......... ialnates

REPLY TO PETITIONER’S QUESTIONS PRE-

SENTED AND REASONS RELIED UPON

(pp. 33-42 of the Petition) 2.0.0... cesses

REPLY TO THE BRIEF IN SUPPORT OF THE

PETITION (pp. 48-50 of the Supporting

IED: suticetin:sseheiionedensniesaenstiphaneninoniicshianmasiinbsnniaeie

REPLY TO THE SPECIFICATION OF ERRORS

(pp. 50-51 of the Supporting Brief) ................

CORFEC UN PUNEOEE BOO B ascerecreissrsersertccenins

COUNTER POINT NO, 2 q......cccccccceseseesseees

(Both Counter Points in reply to pp. 50-82

of the Supporting Brief)

RTE TERRINIIS snscnrensenrisserssvensrarnnsssenssnercnscrassacenennnins

Page

AUTHORITIES

Page

Alabama Great Southern RR. Co. vs. Davis, 18 So.

(2d) 737; 246 Ala. 64, certiorari denied 65

S. Ct., 676; 324 U.S. 846, 89 Law Edition, 407 15-16

Brady vs. Southern Ry. Co., 64 S. Ct., 232; 320 U.

B. SIPs SB Lier TRI, FD nsccenvessieeiccens 10

Delaware, L. & W. Railway vs. Koske, 279 U. S.,

7; 49 S. Ct., 202; 73 Law Edition, 5°8 ........ 15

Great Northern Railway Company vs. Wiles, 240

U. S., 444; 36 S. Ct., 406; 60 Law Edition,

TEE costed ebalandis siicieata snchleleciadaiaaeiandiacmatadiaacdaiencanta 7-8, 13

Lavender v. Kurn, 327 U. S. 653; 66 S. Ct., 744;

ee eI IIIS IE criGechieinndnidehininiaiceheniomiadcanicneiens 12

Tennant v. Peoria & P. U. R. Co., 321 U. S., 32; 64

ee te Fe Re 12

IN TRE

Supreme Court of the United States

OCTOBER TERM 1947

No. 321

LELA MAE BENSON, ADMINISTRATRIX, Petitioner

vs.

MISSOURI-KANSAS-TEXAS RAILROAD COMPANY OF TEXAS,

Respondent

BRIEF OPPOSING PETITION FOR WRIT OF

CERTIORARI

To the Honorable the Supreme Ceurt of the United States:

Respondent submits that the history of this cause in the

Courts of the State of Texas, as reflected on pages 1-4 of

the Petition, is correct. However, in making this admis-

sion, Respondent does not agree with or admit the force

of any of the argumentative statements made by Peti-

tioner in the narration of the proceedings had in the

Courts of Texas and contends that there was no error com-

—

2

mitted which in any manner deprived Petitioner of any

right under the Federal Employers’ Liability Act, Title

45 USCA, Section 51, et sequitur.

Respondent further submits that the opinion of the

Court below (R. 45-55), reported in Volume 200 SW (2d)

223, correctly disposes of all issues in the cause and that

such opinion needs no bolstering, amplification or ex-

planation from Respondent. (In reply to statement of

Petitioner upon the decision and judgment of the Court

below as appears on pages 4-9 of the Petition)

REPLY TO THE PETITIONER’S STATEMENT WITH

REFERENCE TO THE NATURE OF THE CASE

AND SUMMARY OF THE MATTER INVOLVED

Respondent respectfully directs the attention of the

Court to the fact that a reading of Petitioner’s first a-

mended original petition, upon which the cause was tried

and submitted to the jury in the Trial Court (R. 1-8),

does not set forth a plausible or a logical theory upon

which any claim of legal liability could be based; it does

not explain the manner in which the deceased met his

death nor the cause of the death of the deceased. These

matters are not referred to upon a question of insuffici-

ency of the pleading, but merely to reflect that the en-

tire record, including the pleading, is utterly devoid of

any facts upon which a finding of proximate cause against

Respondent could be based. This statement is made at

3

this point to demonstrate that a reading of such plead-

ing still leaves the defendant and the trier of the facts

in a state of doubt, uncertainty and conjecture with re-

gard to that which it is claimed that the Respondent did

or failed to do which could have caused the death of the

deceased. As heretofore stated, a reading of the entire

record reflects that same doubt for the reason that it

establishes no facts from which a rational or logical ex-

planation of the cause of the tragedy could be reconstruct-

ed. As will be pointed out later, even though the jury

was allowed to delve into the field of conjecture, supposi-

tion and speculation, it still found no act of the Respondent

which was a proximate cause.

Respondent also respectfully submits that the statement

of the nature of the case appearing on pages 9-31 still lea-

ves the cause of death and the manner in which such oc-

currence happened in a state of doubt, confusion and uncer-

tainty, to such an extent that there is no reasonable or logi-

cal basis for a finding that Respondent caused his death or

that in the exercise of due care it could have reasonably

foreseen that he would meet his death at such time and

place.

In the absence of a factual basis upon which proximate

cause might be reasonably based, there is no case proved

such as imposes liability and, under the decisions of this

Honorable Court, the judgment of the Court below is cor-

rect. Attention is further directed to the fact that no-

4

where in the Petition, or in the Brief in support of same,

does Petitioner attempt to demonstrate from the facts in

evidence whether the deceased met his death by being

struck by the eastbound Train No. 372 or the westbound

train No. 381 as it pulled up approximately a car length

after train 372 had passed. Likewise, no plausible ex-

planation is made for the presence of deceased between

the tracks at the time of the approach of train 372, the

eastbound train, which train he and all other employees

present knew was due to arrive at 3:15 A.M. The uncon-

troverted record reflects that deceased’s presence there

was contrary to the safety rule which required him to

be in a position of safety upon the approach of another

train. (R. 30-31)

As heretofore pointed out, even in the field of specula-

tion, conjecture, supposition and guess work the jury found

no act of negligence on the part of Respondent which proxi-

mately caused the death of deceased. (R. 35-43)

The Court below based its judgment upon two grounds:

1) The verdict of the jury which found no act of

proximate cause.

2) The insufficiency of the evidence to sustain a find-

ing of proximate cause against Respondent.

Such Court held that either ground entitled the Re-

spondent to judgment in this cause. The situation is pre-

cisely the reverse of that which confronted the Court in

—

5

the cases cited by Petitioner. In such cases cited the

Court below had set aside the verdict of the jury in favor

of the petitioner. In this cause the Trial Court and the

Court below held that the Respondent was entitled to

judgment upon the verdict.

JURISDICTION

Respondent makes no contention that this Honorable

Court cannot exercise jurisdiction over the cause; it re-

spectfully insists that in the proper exercise of judicial

discretion, such jurisdiction should not be entertained for

the reason that the judgment of the Court below was in

all things correct.

REPLY TO PETITIONER’S QUESTIONS PRESENTED

AND REASONS RELIED UPON

(Pages 33-43 of Petition)

Respondent submits that such reasons and the questions

presented do not properly reflect the record and the

issues which were decided by the Court below, in that no

act of negligence which was a proximate cause was found

against Respondent. (R. 35-43) While the record does

reflect that the jury found in answer to a general find-

ing that sixty per cent of the negligence of Respondent

proximately contributed to cause the death of deceased,

such a finding became immaterial because it is controlled

and wiped out by the specific findings in answer to Special

6

Issues Numbers 3, 13, 16, 19 and 20, (R. 35-42) which

jury findings acquit the Respondent of any negligence

which was a proximate cause. There is no contention that

the evidence was not sufficient to support such findings

of no proximate cause and, therefore, the judgment of

the Court below was in all things correct, because it ren-

dered judgment upon the controlling findings and disre-

garded a general finding which was unsupported by the

evidence and, therefore, in no manner controlling.

REPLY TO THE BRIEF IN SUPPORT OF THE

PETITION

(Appearing on pages 43-83)

In reply to that portion of the Brief styled III, be-

ginning on page 47 thereof, Respondent again directs the

attention of the Court to the entire verdict of the jury

(R. 35-43), which finds no act of negligence upon the

part of Respondent which proximately caused the death

of the deceased. There were three issues upon the negli-

gence of Respondent submitted to the jury. 1) In the

manner of laying out and maintaining its main line and

passing tracks and area between same; 2) Whether the

engineer of the westbound train started said train with-

out giving any signal or notice; 3) Whether the signal

given was sufficient. The jury found that the manner of

laying out and maintaining its main line and passing

tracks and the area between the same was negligence,

RP LE OSE EEE OE I ONE UL BEF EGS —

ea

7

but it found that such negligence was not the direct and

proximate cause. In this connection, Respondent submits

that this answer upon proximate cause was the only ans-

wer under the record which could have been given, be-

cause there was no evidence from which it could be logi-

cally inferred that the manner of laying out and maintain-

ing the tracks caused the deceased to be on the main line

track or in the area between the main line and passing

tracks at the time of the approach of the eastbound train,

which he knew was due to be there at 3:15 A. M. There-

fore, since the jury rightfully found no responsible negli-

gence upon the part of Respondent, the answer of the

jury to a general issue upon cortributory negligence,

which issue was conditioned upon joint responsibility, be-

came immaterial and of no controlling force and effect.

The undisputed record reflects that the deceased was

violating a rule of safety in being between the tracks or

on the main line track; therefore, as a matter of law the

rule of a comparison of negligence is not applicable, even

though there was any issue for the jury. In support there-

of Respondent quotes from the case of Great Northern

Railway Company vs. Wiles, 240 U.S. 444; 36 Supreme

Court, 406; 60 Law Edition, 732:

“cc

*** The case at bar is not solved by the doctrine.

There is no justification for a comparison of negli-

gences or the apportioning of their effect. The pul-

ling out of the drawbar produced a condition which

demanded an instant performance of duty by Wiles,

a

8

—a duty not only to himself, but to others. The rules

of the company were devised for such condition and

provided for its emergency. Wiles knew them, and

he was prompted to the performance of the duty they

enjoined (the circumstances would seem to have

needed no prompting) by signals from the engineer

when the train stopped. He disregarded both. His

fate gives pause to blame, but we cannot help point-

ing out that the tragedy of the collision might have

been appalling. He brought death to himself and to

the conductor of his train. How imperative his duty

was is manifest. To excuse its neglect in any way

would cast immeasuralble liability upon the railroads,

and, what is of greater concern, remove security

from the lives of those who travel upon them; and

therefore all who are concerned with their opera-

tion, however high or low in function, should have

full and an anxious sense of responsibility.

“In the present case there was nothing to extenu-

ate Wiles’s negligence; there was nothing to con-

fuse his judgment or cause hesitation. His duty was

as clear as its performance was easy. He knew the

danger of the situation and that it was imminent; to

avert it he had only to descend from his train, run

back a short distance, and give the signals that the

rules directed.”

Respondent wishes at this point to take issue with any

inference contained in the second paragraph on page 47

to the effect that the Respondent was maintaining any

character of yards at the scene of the accident. There is

no such evidence in the record and the uncontradicted evi-

dence reflects that a passing track and a main line track

a PERE WORE ELIOT AG NEE RNA E GLALEALOOGEGEONEEIN —

=

9

were all that were maintained at the scene of the accident

and that such tracks were out in the open country. In sup-

port thereof, reference is made to the photographic ex-

hibits appearing on pages 76-80 of the Record.

REPLY TO THE SPECIFICATION OF ERRORS

(Appearing on pages 50-51 of the Brief)

Respondent respectfully requests consideration of the

following Counter Points in reply to the errors specified

by Petitioner and the argument and authorities submit-

ted thereto. These Counter Points are related to each other

and will, therefore, be argued together.

COUNTER POINT NO. 1

The record reflecting that there is no finding by the

jury which would convict the Respondent of proximate

cause, the Court below correctly and properly disregard-

ed a general unsupported finding upon comparative con-

tributory negligence. (In reply to all Specifications of

Error appearing on pages 50-51, argued on pages 51-83

of Petitioner’s Brief)

COUNTER POINT NO. 2

The record reflecting that there is not sufficient evi-

dence to sustain a finding of proximate cause against

Respondent, the judgment of the Court below was in all

things correct. (In reply to all Specifications of Error

10

appearing on pages 50-51 of Petitioner’s Brief, argued

on pages 51-83 thereof)

The Court below has held that the Respondent was

entitled to judgment upon two grounds: First, that the

finding upon an issue which was general and uncontroll-

ing was immaterial in view of the finding of no proxi-

mate cause; and second, there was not sufficient evi-

dence in the record to support a finding of proximate cause

and, therefore, there existed no controverted issue of fact

for submission to the jury.

This Court is not concerned with the form or the man-

ner in which the issues were submitted to the jury, since

there is no requirement of a jury trial under the Constitu-

tion of the United States. It is concerned with the suffi-

ciency of the evidence to sustain the verdict and the judg-

ment rendered thereon. For a statement of the applicable

rule, Respondent quotes from the case of Brady v. South-

ern Ry. Co., 64 Supreme Court, 232, 234 and 235; 320 U.

S. 477, 479-480; 88 Law Edition, 239 (1943):

“*** The weight of the evidence under the Em-

ployers’ Libility Act must be more than a scintilla

before the case may be properly left to the discretion

of the trier of fact—in this case, the jury. Western

& Atlantic R. R. v. Hughes, supra; Baltimore &

Ohio R. R. Co. v. Groeger, 266 U. S. 521, 524, 45

S. Ct. 169, 170, 69 L. Ed. 419. Cf. Gunning v. Cooley,

281 U. S. 90, 94, 50 S. Ct. 231, 233, 74 L. Ed. 720;

Commissioners v. Clark, 94 U. S. 279, 284, 24 L. Ed.

59. When the evidence is such that without weigh-

—— —

w eR AE TONITE ——

—

11

ing the credibility of the witnesses there can be but

one reasonable conclusion as to the verdict, the court

should determine the proceeding by non-suit, directed

verdict or otherwise in accordance with the appli-

cable practice without submission to the jury, or by

judgment notwithstanding the verdict. By such direc-

tion of the trial the result is saved from the mis-

chance of speculation over legally unfounded claims.

Galloway v. United States, 319 U. S. 372, 63 S. Ct.

1077; Pence v. United States, 316 U. S. 332, 62 S. Ct.

1080, 86 L. Ed. 1510; Baltimore & Ohio R. Co. v.

Groeger, 266 U. S. 521, 45 S. Ct. 169, 69 L. Ed. 419,

noted; Anderson, Adm’x, v. Smith, 226 U. S. 439, 33

S. Ct. 176, 57 L. Ed. 289; Coughran v. Bigelow,

164 U. S. 301, 307 17 S. Ct. 117, 119, 41 L. Ed.

442; Gunning v. Cooley, 281 U. S. 90, 93, 50 S. Ct.

231 232, 74 L. Ed. 720, note; Seaboard Airline Ry.

v. Padgett, 286 U. S. 668, 678, 35 S. Ct. 481, 482,

59 L. Ed. 777; Parks v. Ross, 11 How. 362, 373, 13

L. Ed. 730. See IX Wigmore on Evidence, (3d ed.,

1940), Paras. 2494 et seq.

An examination of the proven facts to determine

whether they are sufficient to permit a verdict by

the jury for the decedent’s estate based upon reason

is of no doctrinal importance. Every case varies.

However, the soundness of the judgment entered in

the state Supreme Court depends upon an appraisal

of the evidence and, as to this, there is a difference

of opinion here. Our conclusion is that there is fail-

ure to show in the record any negligence of the car-

rier from not putting a light on the derailer or by

the action of other employees than decedent in clos-

ing the derailer.”

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12

Without admitting that there exist sufficient probative

facts in the record to warrant the submission of this cause

to the jury, Respondent submits that the jury has found

the existence of no proximate cause; If the evidence is

sufficient to sustain a finding of proximate cause, as

Petitioner contends, then it is certainly sufficient to sus-

tain a finding of no proximate cause and the one finding

is as binding as the other. In support thereof Respondent

quotes from two recent decisions of this Honorable Court.

Tennant v. Peoria & P. U. R. Co., 321 U. S. at pages

$2, 38, 64 S. Ct. at page 411, 88 L. Ed. 520:

“Petitioner was required to present probative facts

from which the negligence and the causal relation

could reasonably be inferred. ‘The essential require-

ment is that mere speculation 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 U. S. 372, 395, 63 S. Ct. 1077, 1089,

87 L. Ed. 1458;° °°.”

Lavender v. Kurn, 327 U. S. at page 653, 66 S. Ct. at

page 744, 90 L. Ed. 421.

“Only when there is a complete absence of proba-

tive facts to support the conclusion reached does a

reversible error appear. But where, as here, there

is an evdentiary basis for the jury’s verdict, the jury

is free to discard or disbelieve whatever facts are

inconsistent with its conclusion. And the appellate

court’s function is exhausted when that evidentiary

LE RTI ART EEE REINS IRE IIL SESE GASTON ES ——

13

basis becomes apparent, it being immaterial that

the court might draw a contrary inference or feel

that another conclusion is more reasonable.”

Since the jury found the existence of no proximate cause,

there is no basis for a finding of sixty per cent contribut-

ing proximate cause. Until the proximate cause is estab-

lished by evidence of probative force, there can be no con-

tributing proximate cause and, as heretofore pointed out,

the findings upon proximate cause destroyed the find-

ing upon contributing proximate cause in answer to

Special Issue No. 12. In this connection Respond-

ent wishes to correct any statement in Petitioner’s Brief

to the effect that Special Issue No. 12 was submitted in

the language requested by Respondent. The record re-

flects that uUie Trial Court refused such requested issue

in the language submitted by Respondent, because Re-

spondent requested such issue without waiving its claim

that the evidence did not justify the submission of any

matter or issue of fact to the jury and also its claim that

in law the negligence of the deceased was the sole cause

of the injury. (R. 34)

As heretofore pointed out, by the quotation on page 7

hereof from the case of Great Northern Railway Company

vs. Wiles, 240 U.S., 444; 36 Supreme Court, 406; 60 Law

Edition, 732, which case holds that contributory negligence

or comparative negligence is not an issue in the cause

when an employee violates a rule of safety which the rail-

ao.

14

road has a right in the exercise of ordinary care to expect

him to obey. In this cause the only duty which rested up-

on the deceased was to place himself in a position of

safety and certainly he was violating that rule in being

between the tracks or on either the main line track or

the passing track at the time of the approach of train

372, the eastbound train. Certainly the Respondent could

not furnish a safe place in the path of an on-rushing

train or in close proximity thereto. Especially is this

true when the uncontroverted record reflects that he was

performing no duty whatsoever there and had no duty to

perform for over fifteen minutes prior thereto. (R. 18)

Also the jury found that deceased was engaged in no

specific duty after he had completed his duties with re-

spect to an inspection of the train. (R. 42) Certainly

these facts conclusively prove that the finding of negli-

gence in laying out and maintaining the main line track,

the passing track and the area in between, which negli-

gence was not a proximate cause, also proved conclusively

that such negligence could not be a contributing proxi-

mate cause to the extent of sixty per cent, or any other

percentage. Such a condition could have in no manner

caused or contributed to cause the deceased to be in a

place where the Respondent could not in the exercise of

due care have expected the deceased, to be. In other

words, the condition of the tracks or the area between the

same in no manner caused him to be in such place, when,

in the exercise of due care, he should have been in a posi-

tion of safety and had fifteen minutes in which

15

to get in such a position. In support thereof, Re-

spondent cites the case of Delaware, L. & W. Rail-

way vs. Koske, 279 U.S. 7; 49 Sup. Ct., 202; 73 Law

Edition, 578. It was correctly held in the case of Alabama

Great Southern RR. Co. vs. Davis, Supreme Court of Ala-

bama, 1944, 18 So. (2d) 737; 246 Ala. 64, certiorari de-

nied in 65 S. Ct., 676; 324 U.S. 846; 89 Law Edition, 407,

that the question of contributory negligence could not be

involved in the absence of an act of negligence on the

part of the defendant which was a proximate cause.

This rule applies to the present controversy because

there are no facts upon which a finding of proximate cause

could be based and also because the jury found that there

was no act of Respondent which proximately caused the

death of deceased. The facts in such above cited case

were much more substantial and forceful towards a find-

ing of proximate cause, but the Court held that specula-

tion was required to determine this issue and, therefore,

no basis existed. We quote from such case on page 742,

as follows:

“***Tt was a warning to stay out of danger from

a back up. If Davis did not catch the signals given

by Atkinson, there is no reason to find that the

signal given by the engineer was not sufficient warn-

ing to him. If Davis did not hear it on account of

the noise of the southbound train, the other train-

men had no way of knowing that. This same south-

bound train was then passing Atkinson and Cagle

also, and had the same tendency to obstruct their

»

ae a:

16

hearing, but they did hear it. Why should it not be

sufficient for Davis?

“If Davis put himself on the track behind the train

at that time, which we will not assume, he should

net have done so after such warnings to him. The

engineer’s signal was warning to all the trainmen.

If he attempted to catch the moving cars and slipped

under them, this was not the proximate result of

any negligence of the trainmen, so far as the evidence

shows. It is difficult to imagine any other cause of

his injury.

“The only question is whether proper signals were

iven of the intended movement. Davis was eight or

ten car lengths nearer the engineer and to the engine

whistle than Cagle and Atkinson, and they heard it

with no better opportunity, and no one testified

that it was not given in a way well understood by

all trainmen. The situation simply shows a regret-

able incident for which the defendant is not respon-

sible, since its duty to Davis was fully discharged.

“The affirmative charge should have been given

for the defendant.”

The same principles are applicable in this cause, where

the deceased had at least fifteen minutes to place himself

in a position of safety and failed to do so.

The Petitioner contends that the deceased was caught

in the stock guard and that such instrumentality, which

the Respondent was required to maintain by law, caused

his death. Such contention is without evidence of any

probative force to sustain it and it is contrary to the

ELSE TLE IES ET IES LEI EET, IE SO PTE ——S

_——

17

facts in evidence. The uncontroverted evidence reflects

that deceased’s body was being pushed or dragged from

the west towards the cattle guard for a distance of twenty-

four feet and that his body was at least sixty-four and a

half feet west of the cattle guard when found. (R. 24-25).

The record also reflects that two gloves, which were cut

in two by a passing train on the main line track, were

found at a point three feet west of the beginning of the

disturbance of the grass where deceased’s body had ap-

parently been dragged or pushed for twenty-four feet.

(R. 23-24) The only reasonable or logical inference which

can be drawn from such facts is that the tragedy was

not caused by the stock guard. Just how or why it hap-

pened is a matter purely for speculation or conjecture,

but certainly these facts do not prove that the stock guard,

or the area between the same, caused or contributed to

cause the death. Likewise. the bodily injuries which de-

ceased suffered disprove any contention that the stock

euard caused or contributed to cause his death. (R. 26)

The torn shoe, the ripped trousers and shirt, which Peti-

tioner strongly relies upon as proving such fact, can in

no manner counterbalance the probative force of the above

evidentiary facts; in dragging or pushing a body for

twenty-four feet upon a railroad right-of-way, quite nat-

urally trousers and shirt will be torn and ripped and also

a heel on a shoe could get torn loose by its contact with

the crossties or some other portion of the right-of-way.

However, even if it be assumed that the deceased was in

18

the vicinity of the cattle guard at the time of the approach

of the eastbound train, there is no explanation for his

presence there or any showing with regard to any manner

in which the Respondent could have foreseen that he

would be present at such spot. The jury has found that

he was performing no specific duty and if there was any

issue of fact to be submitted to a jury, this finding is con-

trolling and cannot be set aside.

The jury found negligence “in the manner of laying

out and maintaining its main line and passing track and

the area between the same * * *.” (R. 37) As heretofore

pointed out, it found that such negligence was not the

direct and proximate cause. There is no reason advanced

throughout the entire Petition and Brief as regards how,

why or the exact manner in which the laying out and

maintaining of the main line and the passing track and

the space in between could have contributed sixty per

cent, or any other percentage, as a proximate con-

tributing cause, which caused deceased to be in be-

tween the main line track and the passing track

or on the main line track, in violation of the safe-

ty rule of Respondent at the time of the approach

of the eastbound train. The record does not even remotely

support any theory upon which judgment could be ren-

dered for Petitioner upon the finding in answer to Spe-

cial Issue No. 12, because there are no facts to support

a finding of proximate cause and, therefore, there can

be no proximate contributing cause on the part of Respon-

RT he AMIS ZS WIE TEMS IL AT PEL Ve | GINS HE erie me - " ms oes — —e —— Se

19

dent. From the facts in evidence, the only logical and

reasonable answer which can be given is that as a mat-

ter of law the manner of maintaining the tracks, and

the area between the same, could have in no degree proxi-

mately caused the tragedy and, therefore, as a matter of

law such action could not have proximately contributed

to cause such tragedy. The Courts below held that Spe-

cial Issue No. 12 was a general finding, which was ren-

dered nugatory by the findings of the jury upon specific

issues which found no proximate cause; and also because

there was no evidence in the record to support a finding

of proximate cause. Without a repetition of authorities

cited by the Court below in support of its ruling to the

effect that such special issue was of no force and effect.

Respondent respectfully refers the Court to them. (R. 50)

The Courts below were further justified in ignoring this

answer of sixty per cent contributory negligence, because

the evidence was insufficient to sustain such finding or,

as has been previously pointed out. any finding upon proxi-

mate cause.

CONCLUSION

Respondent respectfully insists that the judgment of

the Court below was in all respects correct; that Petitioner

has been deprived of no right whatsoever under the Fed-

eral Employers’ Liability Act, because the record reflects,

without the necessity of further investigation, that the

20

evidence was in all respects insufficient to sustain any

judgment in favor of Petitioner; that the record also re-

flects that the verdict upon such insufficient evidence ac-

quitted the Respondent of any negligence which was a

proximate cause; and for both of these reasons Respon-

dent submits that the Petition should be denied and in

duty bound it will ever pray.

G. H. PENLAND

M. E. CLINTON

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Attorneys for Respondent

: 1108 Magnolia Building

i; Dallas 1, Texas

TOUCHSTONE, WIGHT, GORMLEY & TOUCHSTONE Be

¥ Of Counsel. 4

i

O. O. Touchstone, one of duly authorized and admitted

Counsel for Respondent, Missouri-Kansas-Texas Railroad

Company of Texas, duly certifies that he has duly de-

livered to J. W. Hassell, counsel tor Petitioner, a true

and correct copy of this Brief in Opposition to the grant-

ing of a Writ of Certiorari, at his office in the Magnolia

Building, Dallas 1, Texas, prior to the filing thereof in

4 the Supreme Court of the United $tates. —

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