Petition for Writ of Certiorari — Banning v. Detroit, Toledo & Ironton Railroad

Office - Supreme Court, U. S.

FILED

MAY 6 1949

| CHARLES ELMORE CROPLEY

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OcrsBeR Term, 1948.

LESTER E. BANNING,

Petitioner,

vs.

WETROIT, TOLEDO & IRONTON

RAILROAD COMPANY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH

CIRCUIT AND BRIEF IN SUPPORT THEREOF.

4 LLOYD T. BAILEY,

325 Thompson Bidg.,

Hot Springs, Arkansas.

MICHAEL H. LYONS,

105 W. Madison Street,

Chicago, Illinois.

HARRISON T. WATSON,

1919 Dime Bidg.,

Detroit 26, Michigan,

Counsel for Petitioner.

Midwest Law Printing Co., 340 W. Huron St., Chicago

INDEX

Sussect Inpex.

PAGE

Petition for Writ of Certiorari « 1 |

a II “sed ccccbei cc lihinsetiehediitae bs danhedadecmndaieiasiaks 2

B. Statement of the Matter Involved... 2

C. Questions Presented a 7

D. Reasons Relied on for Allowance of Writ...... 8

Brief in Support of Petition - 10

I. Opinions of Court Below 10

II. Jurisdiction ‘ : 11

III. Statement of the Case 11

IV. Questions Presented 11

V. Argument 12

Summary of Argument:

1. The verdict of the jury should be up-

held on issue properly submitted 12

2. Issue involving muddy condition where

petitioner was required to work 15

3. Negligence of the defendant should be

determined by viewing its conduct as a

whole = 17

Conclusion : 21

TasLe or Cases Crrep.

Bailey v. Central Vermont Ry., 319 U. S. 350, 63 §.

Ct. 1062

Bigelow v. R.K.O., 327 U. S. 251, 66 S. Ct. 574.

Blair v. B. & O. Ry. Co., 323 U. S. 600, 65 S. Ct. 545

(1945)...... PES ae

Coray v. Southern Pac. Co. (Decided January 3,

1949) 69 S. Ct. 275

Cross v. Ryan (Cir. 7) 124 F. 2nd 83, certiorari de-

nied (1942) 316 U. S. 682, 62 S. Ct. 1269, 86 L. Ed.

1755

Ellis v. Union Pac. R. Co., 329 U. S. 649, 67 S. Ct, 598

Jones v. East Tennessee V. & G. R. Co., 128 U. S. 443,

9S. Ct. 118

L. & N. R. Co. v. Botts (March 1949), 173 Fed. 2nd

164 (Cir. 8)

Larsen v. Chicago & N. W. Ry. Co., 171 Fed. 2nd 841

Lavender v. Kurn, 327 U. S. 645, 66 S. Ct. 740...

Miller v. Adv. Transp. Co. (7th Cir.) 126 F. 2d 442

(Certiorari denied) 63 S. Ct. 32, 317 U. S. 641.0...

Tennant v. Peoria & T. U. Ry. Co., 321 U. S. 29, 64

S. Ct. 409

Tiller v. Atlantic Coast Line Ry. Co., 65 S. Ct. 421,

323 U. S. 574

Washington & G. R. Co. v. McDade, 135 U. S. 554,

10 S. Ct. 1044

Wilkerson v. McCarthy (decided January 31, 1949),

69 S. Ct. 413

Union Pac. Ry. Co. v. Hadley, 246 U. S. 330, 38 S.

Ct. 318

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YY

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1948,

No.

LESTER E. BANNING,

Petitioner,

vs.

DETROIT, TOLEDO & IRONTON

RAILROAD COMPANY,

Reapondent.

PETITION FOR WRIT OF CERTIORARI.

ba

To the Honorable Chief Justice of the United States and

the Associate Justices of the Supreme Court of the

United States:

Lester E. Banning respectfully petitions that a writ

of certiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit entered in

this case on April 5, 1949.

2

A.

Jurisdiction.

The judgment of the Court of Appeals was entered on

April 5, 1949 (R. 405). The jurisdiction of this court

is invoked under Section 1254(1) of Title 28 United

States Code as enacted by the 80th Congress—Second

Session, 1948, effective on September 1, 1948.

B.

Statement of the Matter Involved.

This case involves a suit for damages instituted un-

der the provision of the Federal Employers’ Liability

Act, 45 U.S.C.A., Section 51, et seqg., by Lester E. Ban-

ning, employed by the Detroit, Toledo & Ironton Rail-

road Company as a brakeman or switchman, for injuries

sustained by him while engaged in the performance of

his duties in the defendant’s railroad yards in Trenton,

Michigan, which he alleges resulted from the negligence

of the railroad company.

The Court of Appeals has found that the evidence war-

rants the inference that the accident occurred under the

following circumstances:

Appellee Banning was employed by the Appellant in

July, 1945 as a brakeman. At the time of the accident on

September 23, 1946, he was working as a member of a

switching crew which was making up a freight train. It

had been raining all day. During the evening, the crew

took a Diesel engine into a siding leading to a gravel

quarry and picked up about 8 gondola cars loaded with

gravel. The engine backed out of the siding, temporarily

dropped the gondola cars and continued backward into

another siding behind a distillery to pick up two box cars.

SS

Banning performed the coupling in this operation. In do-

ing so he alighted from the engine and walked around

on the road bed. At this point there was a thin layer

of mud about two inches thick and Banning got mud

on his boots. The crew worked on this siding for about

15 minutes. After coupling the cars, Banning got upon

the engine and stayed there about 3 or 4 minutes before

it pulled out. He was in & position where he could talk

to the engineer and fireman. He was not on the ground

again in that area.

The engine pulled the two box cars back to the location

of the gondola cars where it again coupled with them.

Banning made this coupling, but the ground was solid

road bed with no mud. The engine then continued its

backward course to the south, out of the quarry siding,

into the main line, pushing the two cars from the dis-

tillery and pulling the cars from the quarry. The cars

from the quarry were then cut off and left standing with

brakes locked. The engine continued backing southwardly

down the main line pushing the two cars to a point about

1,000 feet to the south of where it had left the other

cars standing. Then the crew proceeded to make a drop

or a flying switch in the following manner: The engine

started northward pulling the two cars toward the stand-

ing cars and got up a speed of 12 to 14 miles per hour.

It then slowed down and created a slack between it and

the two cars which were uncoupled from the engine. The

engine then speeded up and passed over a switch lead-

ing from the main line down a dead end siding. After

the engine went off ‘nto the siding the switch was im-

mediately thrown back so that the free running cars fol-

lowing the engine passed on and continued down the main

line. They would thus run into and become coupled to

the standing cars from the quarry, eliminating the en-

a

4

gine from the middle. The combined cars were to be

then pushed to the yards.

Banning was then on the front end of the box car

nearest the engine. He uncoupled the cars from the engine

when the engine created slack. He then climbed a ladder

on the moving car to a brake platform where it was his

duty to operate the hand brake in order to control the

speed of the box cars and slow them down so that they

would make an easy contact and an automatic coupling

with the standing cars. Banning claims that although he

continuously applied the brake the cars had been pushed

at such a speed that he only succeeeded in slowing them

to a speed of six or seven miles per hour when they hit

the standing cars, and that the resulting impact and

crash threw him off the brake platform on to the gravel

ear and then down on to the road bed. At the time of

the collision he was standing on the platform with a firm

foothold and with both hands on the brake wheel. He

described the impact as having jerked his hands and feet

loose. The accident occurred about 8:00 P. M. There was

a misting or light rain at the time. Banning received

injuries to his back.

At the close of all the evidence the Appellant moved

for a directed verdict. The Court reserved decision on

the motion and submitted the case to the jury. The jury

found for the appellee in the sum of $41,000.00. Appel-

lant’s motions for judgment non obstante veredicto and

for a new trial were overruled and judgment was entered

on the verdict.

The complaint filed by Petitioner contained both gen-

eral and specific allegations of negligence (R1-Amended

R13-15. The complaint was amended only to aver that pe-

titioner slipped from the braking platform of the car in-

stead of, as originally alleged, from a ladder rung on the

end of the car), the third paragraph was based generally

on the theory that respondent failed to furnish petitioner

a reasonably safe place in which to work and recited in

substance that respondent failed in its duty to petitioner

by causing him to perform switching operations and

work upon the ground where it was muddy, wet and slip-

pery so that his boots became immersed and covered

with slippery, greasy mud, as a result of which peti-

tioner’s feet were caused to slip from the braking plat-

form of a box car when said box car came in violent

and unusual collision with a standing car, causing plain-

tiff to be thrown from his position on said car to the

ground and injured. Following this general allegation of

negligence (R. 3) the complaint alleges several partic-

ular acts of negligence upon which there was no proof,

save the natural inferences to be drawn from the evi-

dence generally, except as to the violent collision and

the muddy condition of the ground and petitioner’s boots.

Petitioner’s evidence that he was required to work in

slippery mud for about 15 minutes on the ‘distillery

switch’? and that his boots were covered with mud when

he mounted the braking platform which was wet; that

along the main track there was no mud as the pathway

was covered with gravel and cinders, and that it was a

rainy, misty night; that in falling, petitioner first struck

the end of a gondola loaded with gravel and bounced

from there to the ground; that petitioner sustained a

fracture of the 8th, 9th, 11th and 12th dorsal vertebrae

and that between the 10th and 11th and the 11th and

12th dorsal vertebrae there was alteration of the space

of the inter-vertebrial space was uncontroverted. The evi-

dence as to other circumstances tended to show that pe-

titioner was dislodged from the braking platform when

the box car he was riding, which was then travelling 6

ee.

to 7 miles per hour, came in collision with cars standing

on the main line loaded with gravel and with the brakes

set. The case was submitted to the jury by the District

Court on the question of negligence on the part of the

railroad and contributory negligence on the part of peti-

tioner (R. 329-343), resulting in a verdict in favor of

plaintiff (R. 349). The Court overruled a motion of

respondent to set aside the verdict and entered judg-

ment for plaintiff (R. 390).

On appeal the Court of Appeals for the Sixth Circuit

reversed the decision of the District Court and ordered

the case remanded for a new trial, holding:

‘«e © * Whether the crash contact was the result

of excessive speed, or caused by Banning’s failure

to properly use the braking mechanism, presented

a disputed question of fact. The District Judge was

correct in submitting this issue to the jury’’,

but held:

‘“‘The evidence respecting whether the Appellant

was negligent in requiring Banning to work under

muddy conditions resulting in muddy boots which

caused him to slip and fall from the braking plat-

form was not sufficient to take that issue to the

jury. * * * Nor does the evidence show in any way

that Appellee was required to work thereafter with-

out being afforded the opportunity to counteract

any danger resulting therefrom. He had ample op-

portunity while waiting on the engine to clean his

boots of mud. * * * Only the issue of excessive speed

should have been so submitted. The verdict ren-

dered by the jury was a general one with no way

to determiné*on which of the two issues it was

based.’’ The Court further stated: ‘‘ Appellee invokes

the ‘unitary rule of negligence’ to justify the sub-

mission of the mud issue, contending that the mud,

rain, wet braking platform and speed of the cars

6

EE mn

7

formed one continuous chain of circumstances which

led to his injury. The case could have been presented

and properly submitted to the jury in that manner”’

(R. 410).

The Court further stated that the two incidents were

entirely separate and distinct and the Judge erred in

submitting both to the jury and that the Appellant is

entitled to a new trial.

The part of the instructions of the District Court

which was criticized by the Court of Appeals, is in sub-

stance (R. 331):

Plaintiff has charged in his complaint that the defend-

ant failed to furnish him a safe place in which to work,

in two respects; first, that he was required to work in

the yard in muddy conditions so that his boots became

slippery and covered with mud; and second, that defend-

ant dropped the car upon which plaintiff was riding in

the performance of his duties at such a high, dangerous

and excessive rate of speed that plaintiff did not have

the opportunity to bring it to a stop by means of the

braking apparatus * * * that unless you find the de-

fendant was negligent in one or the other respects as

claimed by the plaintiff, you should find for the defendant.

The Court of Appeals further held that there was

sufficient evidence to show that plaintiff was injured when

knocked from the brake platform due to the violent

collision.

C.

Questions Presented.

1. Whether a general verdict should be upheld in a

case involving two or more issues or theories, when one

issue or theory has been properly submitted to the jury

and is sustained by the evidence.

——

8

2. Whether or not, under the circumstances, there

was sufficient evidence, together with the natural infer.

ences flowing therefrom, to justify the submission of the

question to the jury on the hypothesis that the muddy

condition in which petitioner was compelled to werk could

or might have contributed to his dislodgement from the

braking platform.

3. ,Whether there was sufficient evidence of a causal

connection between the slippery mud on_ petitioner's

boots, the wet braking platform, the violent collision re-

sulting in injury to petitioner to justify submission of

that question to the jury over defendant’s objections

under the ‘‘unitary rule of negligence.”’

D.

Reasons Relied On for Allowance of Writ.

1. The United States Court of Appeals for the Sixth

Circuit has rendered a decision in conflict with the de-

cision of other Court of Appeals on the same matter,

and a decision in conflict with a decision of this Court,

namely: that a general verdict should be upheld in a

ease in which there are two or more issues or theories

when one issue or theory has been properly submitted

to the jury and is sustained by the evidence if, in the

opinion of the Court, another issue or theory has been

improperly submitted te the jury and should have been

withdrawn.

2. That there was sufficient evidence, taking into con-

sideration the surrounding circumstances and the natural

inferences flowing therefrom, for the jury to have found

that the muddy conditions contributed to petitioner’s dis-

lodgment from the wet braking platform and contrib-

uted to his injury.

_ ————

9

3. That the evidence on the whole, including the nat-

ural inference to be drawn therefrom, showed a chain

of circumstances which proximately caused and contrib-

uted to petitioner’s injury.

A supporting brief accomp<nies this petition.

' Wherefore, petitioner respectfully prays that a writ of

certiorari issue to review the order of the United States

Court of Appeals for the Sixth Circuit ‘entered by that

Court in this case on April 5, 1949, and that said order

be reversed by this honorable Court and that your peti-

tioner may have such other and further relief as may

be deemed proper by this honorable Court.

Lioyp T. Barey,

325 Thontp#n Bldg.

Hot Springs, Arkansas.

Micuagrt H. Lyows,

105 W. Madison St.,

Chicago, IMinoi

Harrison T.

1919 Dime Bui

Detroit 26,

—

: oo

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1948.

No.

LESTER E. BANNING,

Petitioner,

vs.

DETROIT, TOLEDO & IRONTON

RAILROAD COMPANY,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI.

I.

Opinions of the Courts Below.

The opinion of the United States Court of Appeals,

Sixth Cireuit (R. 405), decided April 5, 1949, is still

unreported. Memorandum of grounds for denial of mo-

tion for a new trial of the District Court of the United

——

il

States for the Eastern District of Michigan, Southern

Diviston, filed March 24, 1948 (R. 382).

II.

Jurisdiction.

The jurisdiction of this court is invoked under Section

1254(1) of Title 28 U.S.C.A. as enacted by the 80th Con-

gress—Second Session, 1948, effective on September 1,

1948. The judgment of the United States Court of Ap-

peals, Sixth Circuit, to be reviewed was entered on April

5, 1949 (R. 405).

ITI.

Statement of the Case.

A statement of the case appears under heading “.

page 2 of the petition for writ of certiorari. We feel

it is not necessary to repeat, but the same is referred to

with the request that it be considered as herein incorpo-

rated by reference.

IV.

Questions Presented.

The questions specifically presented by the petition for

writ of certiorari appear under heading ‘‘C’’, page 7 of

the petition, and in the interest of brevity, they are not

repeated, but are referred to with the request they be

herein incorporated by reference.

ARGUMENT.

Summary of Argument.

1. The United States Court of Appeals for the Sixth

Circuit held that the evidence in this case is sufficient to

support the verdict of the jury on one issue which was

properly submitted. The verdict should, therefore, be up-

held even though another issue may have been improp

erly submitted.

2. The issue relating to the slipper muddy roadbed

upon which petitioner was required to work was prop-

erly submitted to the jury and was sufficient evidence to

sustain a verdict founded thereon.

3. There was sufficient evidence to show a causal con-

nection between the slippery mud on petitioner’s boots,

the wet braking platform, the violent collision and _peti-

tioner’s injury.

1. The Verdict of the Jury Should Be Upheld on Issues

Properly Submitted.

The Court of Appeals concedes that the evidence pro-

duced at the trial of this case was sufficient to sustain

a verdict of negligence against the defendant as to the

violent collision between the car upon which petitioner

was riding and the standing cars on the main line track,

and concedes that the issue raised by this evidence was

properly submitted to the jury and indicates that had no

other issue been raised it would have affirmed the judg-

ment. The Court of Appeals also holds that had the

question of the violent collision, the muddy conditions

P

of the roadbed and petitioner’s boots, been submitted to

the jury in one bundle it would have affirmed the judg-

ment. It holds, however, that because the petitioner al-

leged that defendant failed to furnish petitioner a rea-

sonably safe place in which to work ‘‘in two respects’?

the judgment must be reversed, because there was no

causal connection between the muddy roadbed, the muddy

boots, the wet braking platform, the collision and _peti-

tioner’s injury; that the issue of the muddy boots was

improperly submitted to the jury and the general verdict

could not be upheld, as it was impossible to say whether

it was based upon the issue properly submitted or upon

the issue that should have been withdrawn.

13

We concede that until recently there has been a de-

cided conflict of authority upon the question as to whether

error affecting only one of two or more issues is preju-

dicial We respectfully submit that this Court, in re-

cent cases, has approved the doctrine that, if one issue

or theory is properly submitted to the jury and is sus-

tained by evidence, a general verdict should be upheld

even though another issue may have been improperly

submitted. In the case of Bigelow v. R.K.O. Radio Pic-

tures, 327 (U. S.) 251, 66 (S. Ct.) 574, in reversing a

judgment of the Court of Appeals, based upon a general

verdict where two theories of damages were submitted

to the jury, said on page 259:

“*In submitting the two classes of evidence of dam-

| age which we have detailed, the trial court stated to

the jury:

‘Plaintiffs seek to recover damages for the al-

leged acts of the defendants on one of two theories’

* * * ‘If plaintiffs have been injured by the al-

leged acts of the defendants, they must choose one

or the other of the said two theories of determin-

ing damages or the amount of damage.’ ”’

a

14

and on page 266 this Court further said:

“We conclude that there was evidence to support

a verdict for damages on at least one theory on

which the case was submitted to the jury. We do

not imply the verdict could not be supported by some

other theory.”’

That this rule has become generally recognized as the

law is further evidenced by the decision of the Court of

Appeals, 7th Circuit, in the case of Larsen v. Chicago &

N. W. Ry. Co., 171 Fed. 2nd 841, an action brought under

the Federal Employers’ Liability Act. The principal

question in that case was whether there was sufficient

evidence to support a jury verdict in either of the two

charges of negligence on which the defendant was found

guilty and the court held that but ‘‘one charge of negli-

gence is sufficient to sustain a verdict,’’ citing Miller vy.

Advance Transportation Company, 7 Cir., 126 F. 2nd

442, 446, certiorari denied, 63 S. Ct. 32, 317 U. S. 641.

Prior to the recent cases above cited this Court ap-

parently gave tacit approval to the doctrine that if, one

issue is properly submitted to the jury and is sustained

by the evidence, a general verdict should be upheld even

though another issue may be improperly submitted, Tiller

v. Atlantic Coast Line Ry. Co., 323 U. S. 574, 65 S. Ct.

421; Cross v. Ryan (C.C.A. 7th, 1941), 124 F. 2d 83, cer-

tiorari denied (1942), 316 U. S. 682, 62 S. Ct. 1269, 86 L.

Ed. 1755; Miller v. Advance Transp. Co. (C.C.A. 7th,

1942), 126 F. 2d 442, certiorari denied (1942), 317 U. S.

641, 63 S. Ct. 32, 87 L. Ed. 516.

Applying this rule to the instant case, in which the

Court of Appeals concedes the ‘evidence presented was

sufficient to justify the submission of the question of neg-

ligence to the jury, the general verdict should be upheld

even though, as determined by the Court of Appeals, the

other issue may have been improperly submitted.

a '

15

2. Issue Involving Muddy Condition Where Petitioner

Was Required to Work.

That there was substantial evidence of mud is entirely

undisputed. The plaintiff in the performance of his duties

had been necessarily wading in mud on the back track .

(R. 34) and here was mud on his feet at the time he

mounted to the brake platform (R. 53). It was rainy

and misty at the time of the occurrence and the braking

platform was wet. Along the main line there was no

mud. The roadbed was paved with gravel and cinders

(R. 36). These facts were undisputed. We submit from

this evidence, the jury had a right to reasonably reach

the inference that if the defendant could provide _peti-

tioner with a solid roadbed of gravel and cinders along

the main line that it could also have furnished him a

solid roadbed upon which to perform his duties on the

back track, and, in that respect, defendant was negligent;

and the further natural and reasonable inference that the

muddy, slippery condition of petitioner’s boots contributed

to his losing his footing on the braking platform and

could have added to plaintiff’s danger. If petitioner did

have time and opportunity to clean the mud from his

boots as suggested by the Court of Appeals that fact was

presented to the jury and considered by them and went

only to his contributory negligence, if any.

In the case of Tennant v. Peoria & T. U. Ry. Co., 321

U. S. 29, 64 S. Ct. 409, this court said on page 35:

“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 qual support to inconsistent and

uncertain inferences. The focal point of judicial re-

view is the reasonableness of the particular infer-

ence or conclusion drawn by the jury. It is the jury,

not the court, which 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 conclu-

sions that which it considers most reasonable (cases

cited). That conclusion, whether it relates to neg.

ligence, causation or any other factual matter, can-

not be ignored. Courts are not free to reweigh the

evidence and set aside the jury verdict merely be.

cause the jury could have drawn different inferences

or conclusions or because judges feel that other re-

sults are more reasonable.”’ . 9

In the case of Lavender v. Kurn, 327 U. S. 645, 66 S.

Ct. 740, this court said on page 653:

‘‘It is no answer to say that the jury’s verdict in-

volved speculation and conjecture. Whenever facts

are in dispute or the evidence is such that fair-

minded men may draw different inferences, a meas-

ure of speculation and conjecture is required on the

part of those whose duty it is to settle the dispute by

choosing what seems to them to be the most reason-

able inference. Only when there is a complete ab-

sence of probative facts to support the conclusion

reached does a reversible error appear. But where,

as here, there is an evidentiary basis for the jury’s

verdict, the jury is free to discard or disbelieve what-

ever facts are inconsistent with its conclusion. And

the appellate court’s function is exhausted when that

evidentiary basis becomes apparent, it being imma-

terial that the court might draw a contrary infer-

ence or feel that another conclusion is more reason-

able.’’

The above rule of law was also followed by this Court

in Ellis v. Union Pac. R. Co., 329 U. S. 649, 67 S. Ct. 598.

This principle of law was also enunciated in the case of

L. & N. R. Co. v. Botts, decided on March 14, 1949, 173

F. 2nd 164 by the Court of Appeals for the Eighth Cir-

cuit. In this case the Court very ably and exhaustively

17

reviewed the important cases on the subject and finally

rendered a decision which appears to us to be contrary

to the opinion of the Circuit Court in the case at bar.

We strongly feel that in view of the foregoing rule of

law the Court of Appeals should have affirmed petitioner’s

judgment.

3. Negligence of the Defendant Should Be Determined

By Viewing Its Conduct As a Whole.

Briefly, what occurred just prior to petitioner’s injury

was that after they reached Trenton, defendant did some

switching leaving 8 or 10 gondolas loaded with gravel on

the main track with the brakes set, then they proceeded

to switch two cars from the back track where plaintiff

was required to get on the ground and walk in the mud,

two inches of slushy mud (R. 34) in assisting in picking

up these two cars. Plaintiff charged that he was on the

back track about 15 minutes. He then mounted the stir-

rup of the car next to the engine and they pulled out on

the main track which placed the diesel locomotive between

the two cars it had hold of and the gravel cars on the

main line. In order to get the locomotive on the end of

the train, it was necessary to make a drop or flying switch

of the two cars which was done according to the evidence

by getting up a speed of around 12 miles per hour, then

slacking off enough to allow petitioner, who had been

riding the stirrup of the car next to the locomotive, to

uncouple the two cars from the locomotive which was then

run in on a siding and the switch closed before the two

cars on which plaintiff was riding reached the switch

so that those two cars would go down the main line and

contact the standing gravel cars. After plaintiff had un-

coupled the locomotive, he proceeded up the ladder to

the braking platform where he applied the brakes in an

a

18

attempt to stop the cars before contacting the standing

cars but was unable to do so, as a result of which the

two cars on which plaintiff was riding struck the stand.

ing gravel cars when going at a speed of 6 to 7 miles per

hour and plaintiff was knocked from the platform, landed

on his back on the edge of the gravel car, bounced from

there to the ground where he landed on his back and was

injured. Inasmuch as the Court of Appeals concedes that

there was sufficient evidence to go to the jury on the ques-

tion of the rough handling of the two cars, we will not

take the Court’s time to go into the details of the evidence

in that respect.

Petitioner contends that there was sufficient evidence

to show a causal connection between the slippery, muddy

roadbed upon which petitioner was required to work, the

wet braking platform and the violent collision; that the

above events and the natural inferences to be drawn there-

from, constitute one continuous chain of events leading

_ to petitioner’s injury. In the case of Blair v. B. & O. Ry.

Co., 323 U. S. 600, 65 S. Ct. 545 (1945), this Court said

on page 604:

**We think that there was sufficient evidence to sub-

mit to the jury the question of negligence posed by

the company. The duty of the employer ‘becomes

more imperative as the risk increases.’ The negli-

gence of the employer may be determined by view-

ing its conduct as a whole. Union Pacific Ry. Co. v.

Hadley, 246 U. S. 330, 332, 333; 38 S. Ct. 318, 319;

62 L. Ed. 751. And especially is this true in a case

such as this, where the several elements from which -

negligence might be inferred are so closely interwoven

as to form a single pattern and each impart char-

acter to the others. * * * Consequently, we think the

jury, and not the court, should finally determine the

issues.’’

In the case of Bailey v. Central Vermont Ry., Inc., 319

U. S. 350, 63 S. Ct. 1062, this Court said on page 353:

_—

19

“The nature of the task which Bailey undertook,

the hazards which it entailed, the effort which it re-

quired, the kind of footing he had, the space in which

he could stand, the absence of a guard rail, the height

of the bridge above the ground, the fact that the

car could have been opened or unloaded near the

bridge on level ground—all these were facts and cir-

cumstances for the jury to weigh and appraise in de-

termining whether respondent in furnishing Bailey

with that particular place in which to perform the

task was negligent. The debatable quality of that

issue, the fact that fair-minded men might reach dif-

ferent conclusions, emphasize the appropriateness

of leaving the question to the jury. The jury is the

tribunal under our legal system to decide that type

of issue (Tiller v. Atlantic Coast Line R. Co., supra)

as well as issues involving controverted evidence.

(Jones v. East Tennessee, V. & G. R. Co., 128 U. S.

443, 445, 9 S. Ct. 118, 32 L. Ed. 478; Washington &

G. R. Co. v. McDade, 135 U. S. 554, 572, 10 S. Ct.

1044, 1049, 34 L. Ed. 235. To withdraw such a ques-

tion from the jury is to usurp its function.

‘‘The right to trial by jury is ‘a basic and funda-

mental feature of our system of federal jurispru-

dence.’ Jacob v. New York City, 315 U. S. 752, 62 S.

Ct. 854, 86 L. Ed. 1166. It is part and parcel of the

remedy afforded railroad workers under the Employ-

ers’ Liability Act. Reasonable care and cause and

effect are as elusive here as in other fields. But the

jury has been chosen as the appropriate tribunal to

apply those standards to the facts of these personal

injuries. * * *To deprive these workers of the benefit

of a jury trial in close or doubtful cases is to take

away a goodly portion of the relief which Congress

has afforded them.’’

In the case of Wilkerson v. McCarthy, et al., decided

by this Court on January 31, 1949, ...... Rha Masti , 69 S.

Ct. 413, this court held on page 418:

‘‘In reaching its conclusion as to negligence, a jury

is frequently called upon to consider many separate

:

stands of circumstances, and from these circum-

stances to draw its ultimate conclusion on the issue

of negligence.’’

In the case of Coray v. Southern Pac. Co., decided by

this court on January 3, 1949, -.... a Sear » 69 S. Ct.

275, which was an action brought under the provisions of

the Safety Appliance Act and the Federal Employers’

Liability Act this court in reversing and remanding the

judgment of the State Supreme Court of Utah, held on

page 277:

‘““These air brakes were defective; for this reason

alone the train suddenly and unexpectedly stopped;

a motor track ear following at about the same rate

of speed and operated by an employee looking in an-

other direction, crashed into the train; all of these

circumstances were inseparably related to one an-

other in time and space. The jury could have found

that decedent’s death resulted from any or all of the

foregoing circumstances.”’

Under the rule of law laid down in these cases we

seriously contend that the circumstances leading up to

plaintiff’s injury from the time he was compelled to wade

in the sloppy, slippery mud until he was thrown from

the braking platform and injured formed one continuous

chain of circumstances so closely interwoven as to form

a single pattern and that each imparted character to the

other, and that this cause was properly submitted to the

jury by the District Court.

a

.

In conclusion, counsel for the petitioner respectfully

submit, for the reasons herein set out, a writ of certiorari

should be granted the petitioner and that this court should

review and reverse the decision of the United States Court

of Appeals for the Sixth Circuit.

Respectfully submitted,

Lioyp T. Bamey,

MicHart H. Lyons,

Harrison T. Watson,

Counsel for Petitioner.