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

SUBJECT INDEX

Page

Cross-Petition for Writ of Certiorari.............. 1-5

Nn: ee I ick oh aks k cnn ckabccecs 2

Statement of the Matter Involved............. 2-4

TN MIO 96 Gre as vin kh AKA kn nc incl 1

Reasons Relied Upon for Allowance of Writ.... 4-5

Respondent's Brief in Reply to Petition of Lester FE.

Banning for Writ of Certiorari................ 7-25

Failure to question rulings of Court of Appeals

is fatal to Banning’s petition............... 7-11

The Court of Appeals correctly decided that the

District Court was in error in submitting to

the jury the issue of the alleged negligence of

the Railroad Company in that Banning ‘‘was

directed and required to work in the yard un-

der muddy conditions, so that his boots be-

came slippery and covered with mud’’....... 11-25

RN civ ty ns Gch akan hn Cerne bee at | 25

Cross-Petitioner’s Brief in Support of Its Petition

Per @ Weet of OCortiorari.... oc. cc scccsescume cs 26-39

Opinion of the Court below... ..........0..... 26

Seen Or POND cs sk wnaccihiseavincssas 26

SPUMMOMMNOU WE GR TORRD now osc ec cc nnsecasccce 26-32

The Court of Appeals erred in deciding that the

District Court was correct in submitting to the

jury the issue of alleged excessive speed... .. 32-39

ECS RE Sen aren 9 etree rs ea 40

ii

INDEX TO AUTHORITIES CITED

Aerkfetz v. Humphreys, 145 U. S. 418, 12 S. Ct. 835...

Atchison, T. & S. F. Ry. Co. v. Toops, 281 U. S. 351,

Ps Ck ROS ic iakid cckcukeasteakbedes

Bailey v. Central Vermont Railway, 319 U. S. 350, 63

SN so ee ka sce ce

Barry v. Reading Co., 147 Fed. 2d 129 (C. C. A. 3rd

Cireuit, 1944), cert. den. 65 S. Ct. 912, 1022...

Bigelow v. R. K. O. Radio Pictures, 327 U.S. 251, 66

Me ME Nes haenecke es) ued wedewhs sceaneun ee

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

Brady v. Southern Ry. Co., 320 U. S. 476, 64 S. Ct.

UI hc erexeh ia as a eSb Nake acs ves

Christian v. Boston & M. R. R., 109 F. 2d 103 (C. C.

its haha ko enceagawcaus ik:

Consolidated Edison Co. v. National Labor Relations

Board, 305 U. S. 197, 229, 59 S. Ct. 206, 217.....

CE a es SON cE en a sc cs vance onseedens

Cunningham v. Great N. R. Co., 73 N. D. 315, 14 N.

AA RE as hoe Kn Wk be bade aha vas kWees

Eckenrode v. Pennsylvania R. Co., 69 S. Ct. 91..

Edwards v. B. & O. R. Co., 131 Fed. 2d 366 (C. C. A.

Ne ee ee a ee

Fantini v. Reading Co., 147 Fed. 2d 543 (C. C. A. 3d

Cireuit, 1945) ; eert. den. 325 U. S. 856, 65 S. Ct.

Dc absenaa inc kswek sures deede bok 68k cks ozs

Gunning v. Cooley, 281 J. S. 90, 50S. Ct. 231........

International Cotton Mills Co. v. Pernod, 244 Fed.

tae (C.C. A. Ist Cirouit, 1916)... 2... cence

Katila v. B. & O. R. Co., 104 Fed. (2) 842, C. A. 6th. .

Keppler v. N. Y. Cent. R. Co., 263 App. Div. 199 (N.

Page

23

37

10

36

16-17

24

36

12

ili

Page

Larsen v. Chicago & N, W. Ry. Co., 171 F. 2d 841... 17

MeGivern v. Northern Pac. Ry. Co., 132 Fed. 2d 213

TU Mies Sa UNE AUIS MOPEDS v5 oc cc dec cvaceseccc 23, 36

Miller v. Advance Transportation Co., 126 F. 2d 442 17

Missouri Pac. R. Co. v. Aeby, 275 U. S. 426, 48 S. Ct.

See EN Kee eee Ribak RkdakuA sca pKeS oo.00 0s 23

Murphy v. Lehigh Valley R. Co., 158 Fed. 2d 481 (C.

ibe Ms Se MORN SIND ccc cs suc senecasaneasin 36

Mutual Benefit H. & A. Assn. v. Snyder, 109 Fed. 2d

469 (C. C. A. 6th Cireuit, 1940)... .. ey eee 37

N.Y. C. & St. L. R. Co. v. Boulden, 63 Fed. 2d 917... 23

Penn. R. Co. vy. Chamberlain, 288 U. S. 253, 53 S. Ct.

EE dacs sedate choc nuke dashes inbscca 37

Rashaw v. Central Vermont Ry., 133 Fed. (2) 253, C.

RT UTA wah GA alk wc Gs oe GA va 68 xd ac es a 12

Roth v. Swanson, 145 Fed. 2d 262, 269 (C. C. A. Sth

ee ees a he inca hackauei 12, 37

Sehilling v. Delaware & H. R. Corp., 114 F. 2d 69 (C,

Ser in ee WOR BOD oo svn ds eas ssacsiecce 12

Strider v. Penn. R. Co., 60 Fed. 2d 237 (C. C. A. 6th

en 37

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

REFS eR GT nen ot 36

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

i i awa 17

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

SOT E 8 CoS REBIA A e 24

Wigmore on Evidence, 3rd Ed., Vol. 1X, See. 2570. .. 38

Wilkerson v. McCarthy, 69 S. Ct. 413. ...00.0.0.00... ll

Wilmington Star Mining Co. v. Fulton, 205 U. S. 60,

Vhs cu arkc yd dba vkasndeuswus 12

Supreme Court of the United States

OCTOBER TERM, 1948

No. 771

—_

LESTER E. BANNING,

Petitioner and Cross-Respondent,

vs.

DETROIT, TOLEDO & IRONTON RAILROAD

COMPANY,

Respondent and Cross-Petitioner

CROSS-PETITION FOR WRIT OF CERTIORARI

To the Honorable Chief Justice of the United States and

the Associate Justices of the Supreme Court of the

United States:

Detroit, Toledo & Ironton Railroad Company, the above

ramed respondent and cross-petitioner, respectfully prays

that a writ of certiorari issue to review the judgment of

the Court of Appeals for the Sixth Circuit entered on

April 5, 1949, whereby said court refused to vacate an

order of the District Court overruling cross-petitioner’s

motion for judgment notwithstanding the verdict of the

jury in said cause.

BASIS OF JURISDICTION

Jurisdiction is invoked under Section 1254-(1) of Title

28, United States Code, as enacted by the Eightieth Con-

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

and Rule 38-(5) of the Rules of the Supreme Court.

The judgment of the Court of Appeals was entered

April 5, 1949 (R. 405). .

Lester KE. Banning, the plaintiff in the cause in the Dis-

trict Court, has heretofore filed a petition for writ of cer-

tiorari to review the same judgment and in connection

therewith has filed a printed transcript of the record, to

which the citations of the record hereinafter made refer.

STATEMENT OF THE MATTER INVOLVED

The Distriet Court of the United States for the Eastern

District of Michigan, Southern Division, on April 2, 1948,

entered a judgment in favor of the plaintiff Banning

against defendant, this cross-petitioner, in the sum of

Forty-One Thousand Dollars ($41,000.00), in accordance

with the verdict of the jury rendered in said canse (R. 390).

Cross-petitioner, defendant below, appealed to the

United States Court of Appeals for the Sixth Circuit,

claiming that the District Court erred in refusing to

grant cross-petitioner’s motion for judgment notwith-

standing the verdict and in refusing, in the alternative,

to grant its motion for a new trial predicated upon certain

alleged errors committed by the trial court.

The Court of Appeals reversed the judgment of the

District Court upon finding that it had committed four

separate and material errors and ordered the case re-

3

manded to the District Court for a new trial, but refused

to order judgment entered for the defendant railroad com-

pany notwithstanding the verdict.

The sole error of the Court of Appeals here complained

of by eross-petitioner in its refusal to order judgment

entered for cross-petitioner notwithstanding the verdict.

Two separate and distinct issues of negligence, and only

two such issues, were submitted by the District Judge

to the jury (R. 331) almost verbatim in the language re-

quested by plaintiff’s counsel (R. 351) as follows:

‘Plaintiff has charged in his complaint that the

defendant failed to furnish him a safe place in

which to work, in two respects; first, that he was di-

rected and required to work in the yard under muddy

conditions, so that his boots became slippery and

covered with mud; and, second, that defendant

dropped the car upon which plaintiff was riding in

the performance of his duties, at such a high, dan-

gerous and excessive rate of speed that plaintiff

did not have the opportunity to bring it to a stop

by means of the braking apparatus which he was

required to operate before it collided with the train

of parked cars standing upon the track, with brakes

set, so that plaintiff was thrown therefrom to the

ground and road bed, sustaining injuries complained

on"

The Court of Appeals found that there was not sufficient

evidence to warrant the submission to the jury of the first

of these two issues, relative to directing and requiring

the plaintiff to work in the vard under muddy conditions,

but it held that there was sufficient evidence to warrant

the submission of the issue of negligence based upon al-

leged excessive speed at which the box car was dropped

or switched. It is cross-petitioner’s contention that there

was not sufficient evidence to warrant the submission of

TS

4

this issue of exeessive speed, and that therefore the case

should have been taken from the jury and a verdict di-

rected for defendant railroad company.

The manner in which the accident happened and in

which plaintiff was injured is in general set forth in the

opinion of the Court of Appeals (R. 406-409) and a por-

tion of this statement thereof is repeated in the petition

for writ of certiorari filed by plaintiff Banning (pp. 24).

In our brief filed in connection herewith we set forth in

detail the facts relating to this issue of alleged excessive

speed.

QUESTION PRESENTED

The sole question presented by this cross-petition is

whether there was sufficient evidence to warrant the sub-

mission of the alleged issue of excessive speed to the jury.

REASONS RELIED UPON FOR ALLOWANCE

OF WRIT

ieee

1. The United States Court of Appeals for the Sixth

Cireuit has decided an important question of local law in

a way probably in conflict with applicable local decisions.

2. The Court of Appeals has decided a federal ques-

tion in a way probably in conflict with applicable decisions

of this Court.

3. There was not sufficient evidenee to take any issue

of negligence to the jury, and if the Court of Appeals

had correctly decided the alleged issue relative to exces-

sive speed, it would have directed a judgment to be en-

tered in favor of the defendant railroad.

5

Wherefore, it is respectfully submitted that this cross-

petition for a writ of certiorari to review the judgment

of the Court of Appeals should be granted.

Dated: May 20, 1949.

CLIFFORD B. LONGLEY,

HENRY C. BOGLE,

HAROLD A. JOHNSON,

Counsel for Cross-Petitioner.

Business Address:

1400 Buhl Building,

Detroit 26, Michigan.

In the

Supreme Court of the United States

OCTOBER TERM, 1948

No. 771

ee

_LESTER E. BANNING,

Petitioner and Cross-Respondent,

vs.

DETROIT, TOLEDO & IRONTON RAILROAD

COMPANY,

Respondent and Cross-Petitioner

oe

BRIEF OF RESPONDENT AND CROSS-PETL

TIONER IN REPLY TO THE PETITION OF

LESTER E. BANNING FOR A WRIT OF CER-

TIORARI, AND IN SUPPORT OF CROSS-PETI-

TIONER’S PETITION FOR A WRIT

OF CERTIORARI

RESPONDENT’S BRIEF IN REPLY TO PETITION

OF LESTER E. BANNING FOR WRIT

OF CERTIORARI

Failure to Question Rulings of Court of

Appeals is Fatal to Banning’s Petition

From a reading merely of Banning’s petition and the

brief in support thereof, one would gather that the ap-

peal from the District Court was based solely on the

8

claimed errors of the trial court in submitting each of the

two issues of alleged negligence and that the Court of

Appeals reversed the case and sent it back for a new trial

solely on the ground that one of these issues was incor-

rectly submitted. Actually, in addition to the two claims

of error, in respect of the submission of each of these two

issues, appellant railroad company also claimed that

four other separate and distinct errors were made by the

District Court in the admission or rejection of testimony

during the trial. Actually, the Court of Appeals found

not only that the District Court committed error in sub-

mitting one of the two issues to the jury, but that it com-

mitted three separate errors in regard to the reception and

rejection of testimony.

In addition to the error found by the Court of Appeals

in the submission by the District Judge to the jury of the

alleged negligence in directing Banning to work in the

yard under muddy conditions, the other three errors which

the Court of Appeals found the District Judge to have

committed during the course of the trial are sufficiently

shown by the following excerpts from the opinion of the

Court of Appeals (R. 411-412):

‘“‘Banning was permitted to testify, over Appel-

lant’s objection, that he had never ridden on a

freight car that came into contact with another por-

tion of the train at as high a rate of speed as the

one involved in the accident. He had made some 25

or 30 flying switches previously. No foundation was

laid to show the circumstances, distance, grade or

other conditions of such previous operations. We

believe the testimony was improperly admitted.

Several factors can affect the speed at the time of

impact, variable under different operations, irre-

spective of the initial speed given to the free rolling

cars. It is a well established rule of evidence that

circumstances under which other comparable con-

9

duct occurs;should be substantially similar. Wig-

more on Evidence, 3rd Ed., Vol. I, See. 459, 460;

C. d O. Ry. Co. v. Thomason, 70 Fed. (2) 860, C.

A. 6th; People v. Gotshall, 123 Mich. 474, 479; Trask

v. Boston & Maine R. R., 219 Mass. 410, 415.

‘*The District Judge sustained objections to ques-

tions addressed by Appellant’s counsel to the con-

ductor and engineer asking whether in their opinion

the drop switch was or was not a normal one. In

each instance the indicated answer was that it was

a normal one. Both witnesses had years of exper-

ience. The general rule permits a witness who is

experienced in technical matters and qualified to do

so, to give his opinion in a matter which is not one

of common knowledge, although it involves an ulti-

mate fact to be finally decided by the jury Trans-

portation Line v. Hope, 95 U. S. 297; Eenpire Oil &

Refining Co. v. Hoyt, 112 Fed. (2) 356, 360, C. A.

6th; Wabash Screen Door v. Black, 126 Fed. 721,

727, C. A. 6th; Ekblom v. G. O. Reed, Inc., 71 Fed.

(2) 399, C. A. 5th; Walsh v. W. P. Rend Colliers Co.,

228 Fed. 311, C. A. 7th. Appellant’s contention that

the general rule is applicable in the present case, in

that the proper operation of a railroad involves a

combination of factors not within the knowledge of

the average juryman appears to have support in the

authorities. Grand Trunk Western Ry. Co. v. Lind-

say, 201 Fed. 836, 844, C. A. 7th; affirmed, 233 U. 8S.

42; Chicago G. W. Ry. Co. v. Price, 97 Fed. 423, C.

A. 8th; Norfolk & Western Ry. Co. v. Gillespie, 224

Fed. 316, 320, C. A. 4th; Pittsburgh S. d N. R. Co. v.

Lamphere, 137 Fed. 20, 23, C. A. 3rd; Union Pae.

Ry. Co. v. Novak, 61 Fed. 573, 579-580, C. A. 9th;

Bellefontaine € I. R. R. Co. v. Bailey, 11 Ohio State

333, 335. We are of the opinion that the testimony

should have been received.

‘*Dr. Conley’s testimony should have been confined

to the X-ray pictures without reference to appel-

lee’s pain, about which he had no personal knowl-

edge.’’

10

Supreme Court Rule 38-(2) provides that ‘‘only the

questions specifically brought forward by the petition

for writ of certiorari will be considered.’’ Banning has

not questioned the other rulings referred to above which

were made by the Court of Appeals, any one of whieh

would necessarily result in the case having been sent back

for a new trial, regardless of the court’s ruling on the

so-called *‘*mud issue.’ There would be no point in allow-

ing a writ of certiorari to issue for the purpose of cor-

recting one alleged error, where other rulings made by

the court below which had the same result, namely the

sending of the case back for a new trial, remain uncom-

plained of.

A further reason for denying Banning’s petition is

that his complaint is merely that the Court of Appeals

remanded the ease for a new trial. In Bailey v. Central

Vermont Railway, 319 U. S. 350, 63 S. Ct. 1062 (1943)

three of the justices of this Court expressed the view that

this Court should not undertake the review of cases under

the Federal Employers’ Liability Act, where no important

principle of law is involved, saying *‘It seems to be thought,

however, that any ruling which takes a case from the jury,

albeit it will not serve as a precedent, is of such paramount

importance as to require review here. * ** But this I do

say, that this Court does not sit to redress every apparent

error committed by competent and responsible courts

whose judgments we are empowered to review. And, if we

undertake any such task, we shall disenable the court to

fulfill its high office in the scheme of our government.”

Cases of this type, where the Supreme Court under its

discretionary power to issue a writ of certiorari, has

taken jurisdiction, are invariably those in which the

decision of the court to which the writ is issued would

have ended- the case, had the writ not been granted. Every

ll

case wherein a writ of certiorari was granted, as listed

by Mr. Justice Douglas in the appendix to his opinion in

Wilkerson v. McCarthy, 69 S. Ct. 413, was of this char-

acter. In the Bailey case the Supreme Court of Vermont

had directed judgment to be entered for the defendant.

The three members of this Court felt that even under

those conditions, a writ of certiorari should not be

granted. The conclusion seems inescapable that no such

writ should be granted where the decision of the Court

of Appeals has merely directed a new trial, and where

a review of the decision by this Court would not only

call upon it to determine the soundness of its ruling in

respect of the submission of one issue, but would call

upon it to consider numerous other rulings made by the

Court of Appeals (not even mentioned by petitioner) in

regard to the reception and rejection of evidence during

the trial.

We submit that for the foregoing reasons, as well as

those hereinafter set forth in respect of the mud issue,

Banning’s petition for a writ of certiorari should be

- denied.

The Court of Appeals Correctly Decided that the

District Court Was in Error in Submitting to the

Jury the Issue of the Alleged Negligence of the

Railroad Company in that Banning “Was Directed

and Required to Work in the Yard Under Muddy

Conditions, so that His Boots Became Slippery

and Covered with Mud.”

Petitioner says in his brief (p. 13) that ‘‘this Court

in recent cases has approved the doctrine that, if one

issue or theory is properly submitted to the jury and is

sustained by evidence, the general verdict should be up-

held even though another issue may have been improperly

submitted.’ This position is at variance with that taken

a

12

by counsel for Banning in the Court of Appeals, where

(p. 21 of their brief filed in that court), in referring to

defendant’s claim that where there is more than one

alleged act of negligence, an issue of negligence should

not be submitted to the jury where no proof is offered

of such alleged aet, they state: ‘*We have no quarrel with

the rule of law laid down in these cases, but we earnestly

submit that they are not in point for the simple reason

that suhstantial evidence was introduced in the at bar,

both on the question of mud, which was entirely undis-

puted, and on the question of the excessive rate of speed

at which the flying switch was made.”’

The Court of Appeals followed the well-known rule that

where an issue is improperly submitted to the jury be-

cause not supported by evidence, and the verdict rendered

is a general one with no way to determine on which of

several issues it was based, the appellant is entitled to a

new trial, citing the following cases (R. 410): Wilmington

Star Mining Co. v. Fulton, 205 U. S. 60, 77-79, 27 S. Ct.

412; Rashaw v. Central Vermont Ry., 133 Fed. (2) 253,

C. A. 2nd; Reth v. Swanson, 145 Fed. (2) 262, 269, C. A.

Sth. See also Katila v. B. € O. R. Co., 104 Fed. (2) 842,

C. A. 6th. Other cases supporting this rule are the fol-

lowing: Schilling v. Delaware € H. R. Corp., 114 F. 2d,

69 (CCA 2nd Cireuit, 1940) and Christian v. Boston &

M. R. R., 109 F. 2d 103 (CCA 2nd Circuit, 1940).

In the Rashaw case, supra, the Court of Appeals, in

reversing a judgment for the plaintiff under the Federal

Kmployers’ Liability Act, points out that the trial judge

took occasion to state the negligence charged by the plain-

tiff, and that in so doing he set forth certain of the

plaintiff’s allegations which the plaintiff charged showed

negligence on the part of the railroad. The appellate

court then says:

13

‘‘This was correct so far as allegations go, but

those allegations were not supported, by proof suffi-

cient to make any issue for the jury in respect to

them. * * * The result is that the case was sub-

mitted to the jury upon allegations of negligence

some of which were not supported by any substan-

tial evidence whatever. This was reversible error

since the verdict was general and may, for aught

that now can be told, have been put upon such false

issues. (Citing cases.)”’

In the Christian case, supra, the Court held, in revers-

ing a judgment under the Federal Employers’ Liability

Act:

‘*Where two issues of negligence are sent to the

jury and the verdict for the plaintiff is general, the

judgment must be reversed if there was no evidence

in support of one of the issues.’’

That this rule is especially applicable in cases under

the Federal Employers’ Liability Act appears from the

ease of NKatila v. B. € O. R. R. Co., supra. In that ease,

the Court of Appeals, in an action under the Federal

Employers’ Liability Act, reversed a judgment in favor

of plaintiff upon an appeal by the plaintiff on the ground

of inadequacy of the verdict, because the lower court had

failed to submit a certain issue, which there was evidence

to support, to the jury, although it had submitted other

issues. The Court pointed out that under the Federal

Employers’ Liability Act, the doctrine of comparative

negligence had been introduced, and that the jury is

permitted to reduce damages im the proportion that the

plaintiff's negligence, if any, bears to the total negligence,

and that:

““* * * there may not be adequate assay of total

negligence unless all negligence supported by evi-

dence is given consideration. This would seem to

14

be the command of reason as we think it is the

mandate of authority.’’ (Citing cases.)

The Court went on to say that:

**The verdict was general and it is impossible, of

course, to say in what amount damages were found

or by what sum they were reduced because of negli-

gence of the plaintiff.”’

In the present case, the Court duly submitted to the

jury, as requested, instructions which would permit the

jury to reduce any damages otherwise found in propor-

tion to the negligence, if any, attributable to the plaintiff

(R. 337).

If the claimed issue respecting the mud was improperly

submitted te the jury, then, under the reasoning of the

Katila case, there could not be an adequate assay of the

total negligence of both parties to permit the proper

apportionment as between them. But, of course ,the vice

of the instruction really goes far beyond this, because,

the verdict being general, we have no means of knowing

what part of the verdict represents damages on account

of the alleged, but unproven, negligence of the defendant

in respect of the mud, nor, indeed, do we have any means

of knowing that the entire verdict is not attributable to

the determination of this alleged issue in favor of the

plaintiff.

Nor was this alleged issue inadvertently or casually

injected into the case. Let it be remembered that plaintiff

specifically charged in his complaint that the defendant

was negligent ‘‘in causing and directing plaintiff to assist

in the switching of cars which necessitated him to alter-

nately walk and work about on the ground when it was

deep with slippery, greasy mud’’ (R. 3); that plaintiff

specifically requested the court to submit as an issue of

15

negligence to the jury that plaintiff ‘‘was directed and

required to work in the yard under muddy conditions so

that his boots became slippery and covered with mud’’

(R. 351); that defendant specifically requested that this

issue be eliminated (R. 357); that the lower court never-

theless gave this request almost verbatim as asked by

plaintiff (R. 331); and that defendant made timely ob-

jetcion under Rule 51 to this part of the court’s charge

and its failure to eliminate this issue (R. 346-348).

In plaintiff’s opening statement (R. 17-18), his counsel

said :

So ee

it had been raining quite constantly all

afternoon, and perhaps longer than that, and that in

and about the place where the plaintiff, Mr. Ban-

ning, Was required to work because of the nature

of his duties, the road bed on some of these tracks,

that is, the road bed surrounding them and imme-

diately adjacent where the plaintiff had to go, had

become extremely muddy, wet and slippery, and as

a result of which the plaintiff’s boots and his feet

and his shoes became and were in a damp and muddy

condition, but that there was nothing he could do

about it, because he had to keep on working in and

around those conditions; and that those conditions

by or surrounding the railroad’s property there

were dangerous conditions ; that the danger of those

conditions were known to the plaintiff—or the de-

fendant railroad company, rather.’’

Defendant’s counsel here objected to the claim that

these conditions were alleged to be dangerous, and counsel

thereupon pointed to paragraph 3 of the complaint which

alleged that the defendant was negligent ‘‘in failing to

furnish plaintiff a reasonably safe place in which to per-

form his duties as an employee.’’

a

16

In plaintiff's argument to the jury just before the

submission of the case to it (R. 296-297), plaintiff’s counse)

said, among other things:

‘*We based our charge of negligence on the fact

that he wasn’t furnished a safe place in which to

work. That is a common ground consisting of two

divisions. One is that they compelled him to work

on grounds that were muddy on a rainy night. The

mud was three or four inches deep. He got mud on

his boots. That evidence is not disputed. Any evi-

dence in this case that hasn’t been disputed, you

have got to take as a fact. It has not been disputed

that he did work in mud three or four inches deep,

sloppy mud, and that it was over his boots, and

that fact contributed to his aecident because his feet

were slippery and when the jolt came he did not

have as good a foothold as he might have had if the

platform were dry, if it weren’t a rainy night and if

mud hadn’t been on his boots. The other premise is

that he was jarred off because it was an unusual

jolt.”’

Not only did the court, over defendant's objection, send

this specific issue to the jury, but throughout his instrue-

tions he emphasized the matter by repeatedly referring

to the duty of defendant railroad to furnish plaintiff with

a reasonably safe place in which to work (see, for ex-

ample, the court’s charge at pages 332, 333, 337, 338).

Inasmuch as ‘‘safe place in which to work’’ has no ap-

plication, so far as this case is concerned, to any conten-

tion other than the alleged mud on the side track, and

obviously e€ulk refer to the manner in which cars or

equipment Were operated by fellow employees, the court

is phrase at all in its charge.

have used

Nor do t ses cited by petitioner on pages 13-17 of

his brief sustain the claim made by him that the rule of

the above cited cases has been abrogated. In Bigelow v.

17

R.K.O. Radio Pictures, 327 U. S. 251, 66 S. Ct. 574,

according to the opinion of the Supreme Court, the sole

question for decision was whether the evidence of damage

was sufficient to support the verdict. There is no indica-

tion that defendant was complaining that an issue un-

supported by evidence had been submitted. The case

provides no parallel to the present one.

Similarly, in Larsen v. Chicago & N. W. Ry. Co., 171 F.

2d 841, defendant does not appear to have been complain-

ing merely of the submission of an unsupported issue, but

its contention was that the court erred in denying its

motion for judgment notwithstanding the verdict. The

ease has no application.

Again, in Miller v. Advance Transportation Company,

126 F. 2d 442, defendant was complaining of the court’s

refusal to instruct the jury to return a verdict for the

defendant and of the overruling of defendant’s motion

for judgment notwithstanding the verdict. Naturally, such

claim could not be sustained if there was sufficient evi-

dence on any charge of negligence.

The case of Tiller v. Atlantic Coast Line Ry. Co., 323

U.S. 574, 65 S. Ct. 421 (cited by petitioner as giving

tacit approval to the doctrine for which he now contends)

actually tends to establish the contrary. The Supreme

Court reaffirmed its previous holding that the evidence

justified submission to the jury of the issues raised by

the original allegations of negligence, sustaining the

Court of Appeals on this point. The Court of Appeals,

however, had held that there was no evidence on the

other issue involving alleged violation of the Boiler

Inspection Act, and had found that the District Court

should therefore have directed that this issue be found

in favor of the railroad. The Supreme Court discusses

this question at considerable length and comes to the

18

conclusion that under the evidence in that case, that issue

was properly submitted to the jury. If this is a tacit

approval of anything at all, it is tacit approval of the

rule for which we are contending, otherwise the Supreme

Court would merely have found that, as it agreed with

the Court of Appeals that there was evidence to support

the first issue, it would be unnecessary to discuss the

second.

In Cross v. Ryan, 124 F. 2d 883, an action for damages

under the Dram Shop Act of Illinois, the questions raised

by the defendant were that each count of the complaint

should have been dismissed, that a verdict should have

been directed, and that a new trial should have been

granted on the ground of insufficiency of the evidence to

support the causes of action stated in the complaint. The

court held that each count stated a cause of action under

the Illinois statute, and that there was substantial evi-

dence to support the verdict. The facts in the case re-

lated only to the single matter of a drunken braw) in a

saloon. The various counts were merely alternative meth-

ods of stating the liability of the proprietor for selling

intoxicating liquor, and it is perfectly clear from a read-

ing of the opinion that there was substantial evidence to

support each and every count. The defendant apparently

only raised the question of the sufficiency of the evidence

to support the eauses of action stated in a motion for a

new trial, and there is no indication that he objected to

the submission of any particular issue of negligence on

the ground of insufficiency of evidence relating to that

issue alone. In fact, notwithstanding the several different

ways in which plaintiff stated his cause of action, it is

clear that there was only one real issue of negligence

involved, namely, the furnishing of the liquor.

<2

19

Petitioner (pp. 15-17 of his brief) next makes the claim

that there was substantial evidence to support the issue

of negligence in respect of the alleged muddy condition of

the road bed.

In support of our claim that there was no evidence

sufficient to take this issue to the jury, we refer, first, to

the opinion of the Court of Appeals pointing out that it

is not negligence on the part of a railroad to operate

merely because of a rainy day; that plaintiff had ample

opportunity to clean any mud off his boots; and that what

little mud he got on his boots was in an entirely different

location from where the accident happened; and that the

two incidents were entirely separate and distinct (R.

409-410).

On this record the following statements are not subject

to dispute:

(a) Plaintiff himself, who was equipped with new

boots, makes the sole claim that he had to walk

in some thin mud, about two inches deep, while

conducting the coupling operation of the switch

engine to the two box cars on the distillery ‘‘barrel

track,’’ which was on the other side of the distil-

lery from the place where the accident happened

(R. 34, 53).

(b) That is the only place where he claims the roadbed

was muddy, and he emphasized this by stating

(R. 34), ‘‘That is where the roadbed was muddy.’’

(c) After this coupling was completed, the Diesel en-

gine remained at that point for about five minutes

and plaintiff spent three or four minutes on the

rear end of the engine, where he was in a position

where he could have talked to either the fireman

or engineer. He remained there while the engine

(d)

(e)

(f)

(g)

20

proceeded north along the barrel track some 400

yards or more to where the gondola cars were

standing on the quarry track (R. 35, 72-73).

When plaintiff dismounted from the engine to

make the coupling to the gondola cars on the

quarry track, he testified that the roadbed there

was “‘gravel and cinders, solid roadbed”’ and that

there was no mud there (R. 36).

He then stood on the metal step or ‘*stirrup’’ on

one of the box cars while the train proceeded along

the quarry track into the main track to a point on

the east side of the distillery, a distance of ap-

proximately 500 yards. He got off at this point

to confer wtih the conductor, but he does not. say

there was any muddy condition whatsoever at that

point.

Plaintiff then got back on the stirrup on the box

car nearest the engine and rode in that position,

and so far as the evidence shows did not get off

on the ground again until the accident took place

some time later. In that position he rode south-

ward as the Diesel engine pushed the two box cars

approximately 300 yards before it reversed itself

to make the drop switch. (The approximate dis-

tances referred to are taken from the scale draw-

ing, Df. Ex. 4.)

If plaintiff acquired some mud on his boots back

on the barrel track, it is quite plain that he had

every opportunity to remove it prior to the hap-

pening of the accident. He could readily have done

this while the switch engine remained on the back

track, or while he was riding on the engine near

the engineer and the fireman, or while he was

>

(h)

(i)

21

riding on the stirrup which obviously would have

constituted a perfect mud scraper (see Pl. Ex. 1).

There is absolutely no evidence in the record that

he at any time advised any member of the crew or

anyone else that his boots had become muddy or

that he asked for any opportunity to clean them off.

(Although it will be noted that in his complaint

he originally charged negligence in failing to give

him time and opportunity in which to clean the

mud from his boots (4), this claim was clearly

abandoned in his own requests to charge.)

An extraordinary feature in regard to this claimed

issue is that, according to plaintiff’s own version

of the manner in which the accident happened, the

mud on his boots, if any, had absolutely nothing

to do with it. The only time that the plaintiff ever

mentions the mud, after referring to the mud that

he claims was adjacent to the barrel track on the

other side of the plant, was when his own counsel

interrogated him as follows (R. 53):

**Q. At the time you performed that operation

following picking up the cars over on the distil-

lery track, were your boots muddy?

A. Yes, they were muddy. They were bound

to have been muddy. There were mud that we had

been wading in, walking in, in the back track

where we had picked these two cars up.

Q. All right, sir. But, nonetheless, you did

get up the ladder and on that brake platform?

A. “Yea, sir.”

(Note in the above that plaintiff again refers only to

mud found in the ‘‘back track,’’ which is the same as the

‘barrel track’? marked on Df. Ex. 4.)

22

Plaintiff does not claim that any mud on his boots had

anything to do with his activities in and about braking

of the box cars, but, on the contrary, repeatedly states

that he was thrown from the braking platform as a resuit

of the impact of the cars, while his feet were firmly

planted on the brake platform and his hands had a firm

grip on the brake wheel. Following are excerpts from his

testimony:

When he mounted to the brake platform, he took

a position facing the car ‘‘with my feet firmly on the

brake platform”’ (R. 53).

At the time of the impact, ‘‘I was standing on the

platform, the brake platform, with a firm foothold

and both hands on the brake wheel’’ (R. 58).

‘‘When the two cars came together I was there

holding on the brake wheel with a strong grip and

as they came together there was a large crash and |

felt myself going through the air and I landed on

this end gravel car with my head and shoulders”

(R. 61).

In answer to questions by the Court, he stated

that his hands were gripping the brake wheel, in-

eluding his left hand which also held the lantern,

that his feet ‘‘were firmly on the brake platform”

and that ‘‘after my hands and feet were jerked

loose, I knew I was falling but there was nothing to

grab there after I was jerked loose’’ (R. 95-96).

Nowhere in his account of the accident did plaintiff

intimate in any way that his feet were caused to slip

from the brake platform due to any mud on his boots, or,

in fact, that they were caused to slip at all, and his re-

peated statements to the effect that he was violently

thrown from the brake platform while his feet were firmly

planted and his hands were firmly gripping the brake

wheel are wholly inconsistent with any such theory.

_—

23

Even if a causal connection had been shown between the

acquisition by the plaintiff of mud on his boots and the

accident, it could hardly be said that defendant railroad

was guilty of negligence in this respect. Railroads are

operated at night, as well as in the daytime. They are

operated in all kinds of weather. That a railroad is not

responsible for weather conditions or for ordinary accu-

mulations of mud and water would scarcely seem to re-

quire a citation of authority. To say that a railroad must

so construct or ballast every portion, not only of its own

roadbed and yards, but of every side and spur track

situated on the property of private industries (which was

the case here) so as to prevent ordinary accumulations

of mud resulting from normal climatic conditions from

time to time would impose a duty not only extraordinary

bu impossible to carry out.

Even where snow or ice accumulates on steps or run-

ning boards, a railroad is not bound to anticipate that the

employee will fail to exercise due care in using available

means to remove same: McGivern v. Northern Pac. Ry.

Co., 132 Fed. 2d 213 (C. C. A. 8th Cireuit, 1942); Mis-

sourt Pac. R. Co. v. Aeby, 275 U. 8S. 426, 48 S. Ct. 177

(1928). See also: N. Y. C. & St. L. R. Co. v. Boulden, 63

Fed. 2d 917; International Cotton Mills Co. v. Pernod,

244 Fed. 723 (C. C. A. Ist Cireuit, 1916); Aerkfetz v.

Humphreys, 145 U. 8. 418, 12 8. Ct. 835.

In the present case the accumulation of mud, if any,

on plaintiff’s boots was under his sole control and he had

every opportunity to remove same, if he considered it

necessary or advisable. Plaintiff abandoned the claim

made in his complaint that he was not given such op-

portunity because the facts obviously refute any such

claim.

=

24

When, however, it also appears that plaintiff has not

enly failed to produce any evidence that the mud condi-

tion contributed in any way to the accident, but, in fact,

by his own story, has definitely established the contrary,

to engage in further argument would seem to be an un-

necessary laboring of the point. There is no evidence in

this entire record on which the jury could have properly

found that this alleged mua condition had anything to

do with the accident, and therefore the issue was improp-

erly submitted to it.

There are undoubtedly cases where the acts contribut-

ing to an accident or injury are such that it would be

impractical or improper to attempt to segregate them be-

cause they are all part of one pattern. Such a ease was

Union Pac. R. Co. v. Hadley, 246 U. S. 330, 38 S. Ct. 318.

In that case the several acts of the various employees in-

volved, including the train dispatcher, the conductor, and

the deceased himself were so interwoven that it was im-

possible to say, under the conditions then existing, that

they did not each of them contribute to the deceased’s

injuries. Similarly, in Blair v. B. & O. R. Co., 323 U. S.

600, 65 S. Ct. 545, there were various interwoven cir-

cumstances forming what the court called a “single

pattern.”’ Actually, in the Blair case the court was not

passing upon the specific question here involved, because

it does not appear that the defendant was complaining of

anything except that there was not sufficient evidence to

warrant the verdict at all.

In the present case, the court left the issues to the

jury in such manner that we are unable to say that the

jury did not base its decision in part, or even wholly,

upon the alleged negligence of the railroad in directing

and requiring plaintiff to work in the yard under muddy

conditions, and this notwithstanding that the only evidence

_—

25

shows what little mud plaintiff got on his boots was

some time before the accident, during which time he had

plenty of opportunity to clean his boots, and notwith-

standing that plaintiff’s own evidence affirmatively shows

that the mud had nothing whatever to do with the acci-

dent.

Conclusion

It should, perhaps, be pointed out that defendant rail-

road company made the additional claim upon its appeal

to the Court of Appeals that the verdict of the jury was

grossly excessive, and that the trial court had abused

its discretion in refusing to grant a new trial upon that

ground. As the Court of Appeals did not find it neces-

sary to pass upon this question, we are unable to say

what its views in that respect are. It would seem, how-

ever, that if Banning’s petition for a writ of certiorari

should be allowed, and if the Court of Appeals should be

found in error in respect of all the rulings actually made

by it, it would be necessary in such case that the cause be

remanded to the Court of Appeals for a determination

of that question, the allowance of which in favor of de-

fendant railroad would likewise presumably result in the

granting of a new trial. We mention this simply to pre-

serve the point in the event of the allowance of Banning’s

petition. Respondent respectfully submits that for the rea-

sons above set forth, the petition of Lester E. Banning for

a writ of certiorari should be denied.

CLIFFORD B. LONGLEY,

HENRY C. BOGLE,

HAROLD A. JOHNSON,

Counsel for Cross-Petitioner.

CROSS-PETITIONER’S BRIEF IN SUPPORT OF ITS

PETITION FOR A WRIT OF CERTIORARI

Opinion of the Court Below

Opinion of the United States Court of Appeals, Sixth

Cireuit, filed April 5, 1949, is found on pages 406-412 of

the record.

Basis of Jurisdiction

Jurisdiction is invoked under Section 1254-(1) of Title

28 United States Code, as enacted by the Eightieth Con-

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

and Rule 38-(5) of the Rules of the Supreme Court.

Statement of the Case

Two and only two issues of negligence were submitted

to the jury as follows (R. 331):

‘*Plaintiff has charged in his complaint that the

defendant failed to furnish him a safe place in

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

directed and required to work in the yard under

muddy conditions, so that his boots became slippery

and covered with mud; and, second, that defendant

dropped the car upon which plaintiff was riding in

the performance of his duties, at such a high, dan-

gerous and excessive rate of speed that plaintiff did

not have the opportunity to bring it to a stop by

means of the braking apparatus which he was re-

quired to operate before it collided with the train of

parked cars standing upon the track, with brakes

set, so that plaintiff was thrown therefrom to the

ground and road bed, sustaining injuries complained

="

_—_

27

Cross-petitioner, defendant below, moved for a di-

rected verdict (R. 290-291); it requested specific instruc-

tions to eliminate each of these issues of negligence (R.

357); it made timely objection under Rule 51 both to the

submission of these issues and to the court’s failure to

grant defendant’s several requests to eliminate same (R.

346-348) ; and it made a motion for judgment notwith-

standing the verdict, and for a new trial in the alternative

(R. 364-382). The District Court denied both the motion

for judgment notwithstanding the verdict and the motion

for new trial and entered a judgment on the verdict of the

jury in favor of plaintiff (R. 389-391). The Court of Ap-

peals sustained the District Court in denying the motion

for judgment notwithstanding the verdict, but granted a

new trial, finding that the District Court committed four

separate errors, namely, that it improperly submitted the

so-called ‘‘mud issue’’ and that it committed errors in the

reception and rejection of certain testimony (R. 405-412).

It is the claim of cross-petitioner that its motion for

judgment notwithstanding the verdict should have been

granted and judgment entered for the defendant railroad;

and inasmuch as the Court of Appeals has found that one

of the two issues was improperly submitted, the sole ques-

tion on this cross-petition is whether there is sufficient

evidence to warrant the submission of the other alleged

issue, namely, that pertaining to the alleged excessive

speed at which the box cars on which plaintiff Banning

was riding were switched or ‘‘dropped.”’

Plaintiff charged in its declaration that ‘‘defendant’s

agents and servants carelessly and negligently pushed

and kicked said box car to be so switched in and upon

said track with such violence that plaintiff could not con-

trol and stop the same in time to prevent a violent colli-

sion with said standing cars on said switch, causing plain-

28

tiff to be dislodged from his position on said car and to

be thrown therefrom and injured as aforesaid’’ (R. 3).

The Court of Appeals has pointed out in its opinion

how the drop switch was made (R. 407). A more de.

tailed statement is as follows:

The gondola cars were left on the main track with their

brakes set, the southerly end of this string being not less

than 200 feet north of Harrison Avenue (R. 231, 266).

The Diesel engine then continued backing southward

along the main track, pushing the two box cars ahead of

it, across Harrison Avenue, past the switch leading into

the distillery track (this point being marked ‘Point of

switch—distillery track’’ on Df. Ex. 4), toa point estimated

by plaintiff to be about 300 feet south of that switch (R,

37, 38, 41). During this movement, plaintiff was stand-

ing on the metal step or so-called stirrup, near the end

of the box ear which was next to the Diesel engine. Ex-

hibit ‘1 is a photograph taken by defendant of this par-

ticular box car MEC 5256. It shows the brake at the end

of the box ear, the platform below the brake, on which

the brakeman could stand while operating the brake, and

two ladders at the corner of the box car, one on the end

of the box car immediately adjacent to the platform and

brake, and the other on the side of the box car next to the

end, permitting the brakeman to swing from the side

ladder to the end ladder and thence to the braking plat-

form. Projecting below the seven main rungs of the side

ladder is the metal step on which plaintiff stood at this

time, in a position which would enable him to pull the

coupling pin by means of a lever which appears below

the end ladder (R. 49-50).

The switching crew was now in a position to make a

so-called “drop switch’’ or ‘‘flying switch’? whereby the

29

Diesel engine would be directed along the side track or

so-called ‘‘distillery track’’ and the two box cars would

be directed north along the main track, to be coupled onto

the gondola cars standing several hundred feet north of

Harrison Avenue (R. 48).

Plaintiff was thoroughly familiar with this type of

switching, and had performed similar operations on de-

fendant railroad some twenty-five or thirty times pre-

viously (R. 59, 74-75).

This maneuver was actually carried out in the fol-

lowing manner: The other brakeman, Smalley, was sta-

tioned in the middle of Harrison between the main track

and the distillery track, to protect traffic (R. 40, 238).

The conductor, Toombs, stood on the east side of the

main track, at the point marked on Defendant’s Exhibit

4 ‘Point of switech—distillery track,’’ for the purpose of

throwing that switch by means of the hand lever (R. 49,

216). Toombs gave the engineer the signal, and the

Diesel engine started rolling northward toward the dis-

tillery track switch, at a speed fast enough to get the

cars rolling, which speed was estimated at about twelve

to fourteen miles per hour as it approached the switch;

whereupon Toombs gave the engineer the signal to slack

off so the ears could be uncoupled. This uncoupling was

accomplished by plaintiff pulling out the coupling pin by

means of a lever as he stood on the metal step referred

to above, while holding on to a rung of the ladder with

his left hand in which he also held the electric battery

lantern (Pl. Ex. 3). The engine then speeded up slightly

and passed down into the distillery track, Toombs imme-

diately threw back the switch or ‘‘relined’’ it, and the two

box ears proceeded under their own momentum north-

ward on the main track toward Harrison Avenue (R. 48-

51, 216-217, 248-249, 264).

30

After the two box ears, with the brakeman riding the

front or northerly end of the first of these cars, passed the

distillery switch and proceeded northerly toward Harri.

son Avenue, the Diesel engine returned back over the dis-

tillery track onto the main line, and Toombs ‘‘relined’’ the

distillery track switch to permit the engine to proceed

northerly over the main track in the same direction as the

two box cars had moved. Toombs then walked diagnoally

across the main track and the distillery track to the

Derail (so designated on Df. Ex. 4) on the west side

of the distillery track, he locked this Derail (which had

been opened to permit the switch engine to come down

the side track), then crossed back to the east side of the

main track, signaled the engineer to come ahead, and got

on the side step of the Diesel as it passed him (R. 217,

226, 250-251).

It was about eight o’clock in the evening, there was a

‘“‘misting’’ or light rain at the time, and, although night

had fallen, there was apparently enough visibility to en-

able plaintiff to see for some distance, as he testified that

as the box cars approached Harrison Avenue, he saw

the other brakeman standing there, where the blinker

lights were working at the crossing, and that as he was

nearing the crossing he turned his head and took an

observation of the gondola cars which stood several

hundred feet north of Harrison Avenue (R. 96-57). >-

(The above facts are undisputed. While defendant

introduced testimony as to other facts, including testimony

- of several witnesses, as to admission by plaintiff that

the accident happened in an entirely different manner

from that which plaintiff claimed on the trial, we of

course, for the purpose of the motion for directed verdict,

accept plaintiff’s version as true, and accordingly the fol-

lowing facts, being plaintiff’s own version, are accepted

as true.)

—ae

Plaintiff’s version is as follows (R. 52-61): After

uncoupling the box cars from the engine, plaintiff climbed

the side ladder near the end of the box car to about the

ffth round, then ‘‘switched around to the end ladder”’

and ‘‘stepped over to the brake platform’’ and took his

position there facing the car ‘‘with my feet firmly on the

brake platform.’’ He continued holding the lantern while

he took hold of the brake wheel, but there was nothing

about holding it that interfered with the operation of his

hands (R. 54). He made sure that the cam, which en-

gages the ratchet to hold the brake wheel as it is applied,

was in the proper position and started to apply the brakes.

He testified that by the time he started to apply the brakes

he was ‘‘nearing the road crossing, Harrison .\venue’’

(R. 55). It was at this time that he took an observation

of the gondola cars by turning his head and looking

over his shoulder. The blinker lights were working at the

crossing and the other brakeman was standing there (R.

36). Based on his experience in driving automobiles and

his observation of the speed of railroad equipment, plain-

| tiff testified that, in his opinion, at the time he made his

observation just before entering Harrison Avenue, the

speed of the box cars was ‘‘around 10 or 11 miles an

hour,’ having decreased somewhat from the time they

were uncoupled (R. 57). From this point he estimated it

was still some 350 or 400 feet to the first of the gondola

ears (57). He testified that the box car on which he

was riding came in contact with the gravel train (that is,

the gondola cars) while he ‘‘was standing on the platform,

the brake platform, with a firm foothold and both hands on

the brake wheel,’’ that he was then putting on the brakes to

slow the car down to where he could get it stopped before it

hit the other cars, although it was not his intention to

bring it to a dead stop until it contacted those cars, so it

would couple to them. He estimated that the speed of

31

32

the box cars at the time of the impact was ‘‘around 6 or

7 miles an hour,’’ that he kept applying the brake by

turning the wheel and observing the end of the car that

he was coming into, but was unable to bring it to a lower

speed.

He testified that from the time he started applying the

brakes before entering Harrison Avenue, up to the

point of the impact, he made constant application of the

brakes (R. 58, 68); that there was ‘‘an awful crash when

it hit’’ (58); that he was then holding on to the brake

wheel with a strong grip, but as the cars came together,

“*I felt myself going through the air and I landed on

this end gravel car with my head and shoulders,” then

fell off on the roadbed on his back (R. 61).

The Court of Appeals Erred in Deciding That the

District Court Was Correct in Submitting to the

Jury the Issue of Alleged Excessive Speed.

The evidence of excessive speed is insufficient to war-

rant submission to the jury. The point at which plaintiff

pulled the pin to cut the two box cars off from the switch

engine when the drop was made must be assumed to have

been at least one car-length south of the ‘‘Point of switch

—distillery track’? (See Df. Ex. 4). This would mean

that this point was about 417 feet south of the south line

of Harrison Avenue (393 feet to ‘‘Point of switch— dis-

tillery track’’—Df. Ex. 4; plus at least 40 feet for the

length of a box car—see R. 279; minus 16 feet for one-

half the width of Harrison). In other words, according

to plaintiff’s own testimony, the distance from the point

where he uncoupled the pin at the beginning of the switch-

ing movement until he started applying the brakes was

about 417 feet. Taking the highest speed, as claimed by

him, at which the cars started on this movement, namely

-

33

14 miles an hour, and the speed at which he claimed they

were going as they entered Harrison Avenue, namely, 11

miles per hour, we have an average speed over this dis

tance of 1214 miles per hour. This means that the box car

on which plaintiff was riding took something over 22 sec-

onds to cover the distance just referred to. ,

The distance from the south side of Harrison Avenue

to the first of the gondola cars north of Harrison was, ac-

cording to plaintiff’s testimony, at least 300 feet (R. 37,

49). Defendant’s witnesses, however, pointed to a spot

on defendant’s Exhibit 4 indicating that the first of these

gondola cars was from 200 to 230 feet north of the north

edge of Harrison Avenue (R. 231, 266). Taking the

’ shortest distance testified to as being the most favorable

to plaintiff, that is, 200 feet, and adding 33 feet for the

width of Harrison Avenue, we find that from the time

plaintiff claims to have started applying the brake to the

point of impact, the box cars had at least 233 feet to go.

As he testified they were going not over 11 miles an hour

at Harrison and not more than 7 miles at the point of im-

| pact with the gondola, this gives an average speed of 9

miles per hour for such distance of 233 feet. At such

speed, it would take the box cars more than 17 seconds to

cover the latter distance. A calculation for the entire dis-

tance from the point of pulling the coupling to the point

of impact with the gondolas shows, according to plain-

tiff’s own testimony, that it took the box cars upwards

of 40 seconds to cover this entire distance.

Although to the eyes the track appeared to be substan-

tially level, actually the cars were going up a slight

grade as they approached Harrison Avenue, but after

arriving at Harrison Avenue until they coupled with the

gondola cars, they were proceeding on an absolutely level

grade (R. 176).

a

34

Assuming that plaintiff is giving the correct version

of the facts when he testifies that he was thrown from the

brake platform on account of the heavy impact when the

box cars coupled onto the gondolas, there is still nothing

in his testimony that raises any inference of negligence

on the part of the railroad for the jury to pass upon. He

does not claim that there was any difficulty in climbing

the side ladder, crossing over to the end ladder, then

stepping on to the brake platform. So far as the evidence

shows, the time it took him to check on the eam to see

that it was in proper position was negligible. He states

that he started to apply the brakes as he was nearing

Harrison Avenue. He took an observation over his shoul-

der of the position of the gondola cars, with which he

must already have been familiar. At this point, at least

20 seconds had elapsed from the time he started up the

ladder. There is no explanation why he did not apply

the brakes earlier if he felt it was necessary. The answer

‘must be that, as a matter of judgment he applied the

bMkes when and to the extent that he felt to be necessary.

He still had over 200 feet to go. It was a matter within

his own judgment and discretion at what speed to permit

the box cars to couple onto the gondolas. He testified it

was not his purpose to stop short, but to permit an auto-

matic coupling. At no time either in the pleadings or in

the evidence has it been claimed that the brakes, or any

other equipment, were in any manner defective. Accord-

ing to his own testimony, the box ears were slowed down

from a speed 6f 10 to 11 miles at the crossing to about

6 or 7 miles an hour at the time of contact with the

gondolas. He says he was unable to bring it to a lower

speed, but there is nothing in the evidence to indicate in

any way that this was due to any negligence on the part

of the railroad or any of its employees other than plain-

tiff himself. His story is perfectly consistent with the

ail

35

failure on his own part either to apply sufficient pres-

sure to the brake when he had plenty of opportunity to

do so or with his own failure of judgment. It is consis-

tent with the assumption that he may have waited too

long or that he may not have used enough force in apply-

ing the brakes.

The claim made by plaintiff on this point is that the

box car was dropped ‘‘at such a high, dangerous and ex-

cessive rate of speed that plaintiff did not have the op-

portunity to bring it to a stop by means of the braking

apparatus which he was required to operate before it col-

lided with the train of parked cars’’ (R. 3, 331, 351). We

submit that the record is devoid of any legal proof that

this is true. Plaintiff’s and defendant’s testimony is sub-

stantially in accord as to the speed of the box cars av the

time of the drop, plaintiff testifying that it was about

12 to 14 miles per hour, and defendant’s fireman testifying

it was about 12 miles per hour. There is no evidence in

this case that under the conditions here existing, this was

an improper or excessive rate of speed at which to start

this operation. Nor is there any evidence that the box

ears could not have been properly controlled during the

time and distance involved. It is true that the Court per-

mitted the plaintiff to testify, over defendant’s objec-

tion (R. 59-60), that he had never ridden on freight cars

that came into contact with another portion of the train

at as high a rate of speed as that which he described here,

and that he had never ridden on a car ‘‘that had been

connected in or shoved in at that rate of speed.’’

The Court of Appeals, however, sustained defendant’s

claim that this testimony was improperly permitted for

the reason that no foundation was laid to show that the

circumstances, distance, grade, or other conditions of some

25 or 30 flying switches that plaintiff had testified he had

36

previously made were similar to the present switching

operation, and obviously, the plaintiff’s statement has

no evidential value whatsoever in proving or tending to

prove that this rate was other than normal or proper

under the conditions here involved. The 25 or 30 flying

switches that plaintiff had engaged in (Rt. 59) were made

at other places up and down the defendant railroad, some

of them in Ohio, and none of them at the point involved

here (74). For all we know, they may have been down-

grade or involved very short distances. There is no evi-

dence in this record either that the rate of speed on this

occasion was improper or even that the box cars, under

their own momentum and without any braking whatever,

would have continued on down to connect to the gondola

ears had they been started out at a less speed.

Plaintiff has not made out a ease for the jury under

the Federal Employers’ Liability Act until he has affirma-

tively shown that defendant has been negligent, that is,

that it has failed to exercise reasonable or ordinary care

in view of all the circumstances, and that such failure

was in whole or in part the proximate cause of the injury:

McGivern v. Northern Pac. Ry. Co., 182 Fed. 2d 213, at

217; Murphy v. Lehigh Valley R. Co., 158 Fed. 2d 481

(CCA Second Cireuit, 1946); Fantini v. Reading Co., 147

Fed. 2d 543 (CCA Third Cireuit, 1945); cert. den. 325

U.S. 856, 65 S. Ct. 1185; Edwards v. B. & O. R. Co., 131

Fed. 2d 366 (CCA Seventh Circuit, 1942); Tennant v.

Peoria € P. U. Ry. Co., 321 U. S. 29, 64 S. Ct. 409;

Barry v. Reading Co., 147 Fed. 2d 129 (CCA Third

Cireuit, 1944), cert. den. 65 S. Ct. 912, 1022.

The weight of the evidence under the Federal Em-

ployers’ Liability Act must be more than a scintilla be-

fore the case may be properly left to the jury: Brady v.

Southern Ry. Co., 320 U. 8S. 476, 64 S. Ct. 232 (1943).

-

37

To justify submitting the plaintiff’s case to a jury, the

evidence in his favor must be substantial and this means

more than a mere scintilla; it means such relevant evi-

dence as a reasonable mind might accept as adequate to

support a conclusion: Mutual Benefit H. & A, Assn. v.

Snyder, 109 Fed. 2d 469 (CCA Sixth Circuit, 1940) ; Roth

v. Swanson, 145 Fed. 2d 262 (CCA Eighth Circuit, 1944) ;

Consolidated Edison Co. v. National Labor Relations

Board, 305 U. S. 197, 229; 59 S. Ct. 206, 217.

A verdict should be directed for defendant when the

evidence produced by plaintiff is such that the jury could

not properly proceed to find a verdict for the party pro-

ducing it, upon whom the onus of proof is imposed, or .

where the court in exercise of sound judicial discretion

should set aside such verdict if rendered: Gunning v.

Cooley, 281 U. S. 90, 50 S. Ct. 231 (1930); Mutual Benefit

H. d A. Assn. v. Snyder, 109 Fed. 2d 469 (CCA Sixth

Cireuit, 1940); Strider v. Penn. R. Co., 60 Fed. 2d 237

(CCA Sixth Cireuit, 1932).

The case should not be permitted to go to the jury

when any verdict in favor of plaintiff must necessarily

be based upon mere speculation or conjecture: Atchison,

T.¢ S. F. Ry. Co. v. Toops, 281 U.S. 331, 50 S. Ct. 281

(1930); Penn. R. Co. v. Chamberlain, 288 U. 8S. 333, 53

8. Ct. 391 (1933).

In Cunningham v. Great N. R. Co., 73 N. VD. 315, 14

N. W. 2d 753 (1944), a case under the Federal Employers’

Liability Act, the Court set aside the verdict and ordered

judgment entered for the defendant on the ground that

“the state of the evidence is such that fair-minded men

in the exercise of reason and judgment could not have

reached the conclusion that the person whom the jury by

its verdict found to have been negligent in fact had been

—

negligent.”’ And see Eckenrode v. Pennsylvania R. Co,

69 S. Ct. 91.

We submit that the evidence in this case is such that

fair-minded men in the exercise of reason and judgment

could not have reached the conclusion that defendant was

negligent or that any of its acts were the proximate cause

of the injury to plaintiff.

While the jurors may refer to their general knowledge

upon matters notorious and unquestioned (IX Wigmore

on Evidence (Third Edition), See. 2570), neither they nor

the court can take judicial notice of the length of time

in which a train can be stopped under a given set of

facts; such testimony can only be supplied by experts or

other witnesses who have had experience in the stopping

of trains: Keppler v. N. Y. Cent. R. Co., 263 App. Div.

199 (N. Y. 1942)—a case under the Federal Employers’

Liability Act.

In the present case, to find that defendant shoved in

the cars at an excessive rate of speed, the jury had

nothing before them but statements of the plaintiff which,

as we have pointed out above, are entirely consistent with

the exercise of care by defendant and, indeed, with the

assumption that plaintiff himself merely failed to act

when he should have acted or had a lapse of judgment.

The Court of Appeals in its opinion states: ‘‘There

was a conflict in the evidence as to the speed at which

the switching operation was performed.’’ As applied to

the only point at which the rate of speed as bearing on

defendant’s negligence would be pertinent, namely, the

point at which the two box cars were uncoupled from the

switching engine before the latter went down into the

side track, this statement of the Court of Appeals does

not appear to conform to the record. There was no con-

ae

39

flict in the testimony as to the speed at which the box cars

were going when they were cut loose from the switch

engine. Plaintiff Banning testified that the Diesel engine

just prior to the uncoupling was going at a speed fast

enough to get the cars going, which speed was estimated

by him to be 12 to 14 miles per hour as it approached the

switch (R. 57), and defendant’s witness Hitchingham, the

fireman, testified that at that time the speed was about

12 miles per hour (R. 264). Both men testified that the

engine slowed down to create slack (R. 80, 264), which

would doubtless slow down the box cars somewhat. The

only conflict in the testimony as to speed is that hetween

the testimony of Banning that the box cars were going

10 or 11 miles per hour as they crossed Harrison Avenue,

and the testimony of the brakeman, who was standing at

Harrison Avenue, who estimated their speed at that time

at 3 or 4 miles per hour. For our purpose here, we accept

Banning’s testimony as to this speed.

The question is this: Was any evidence introduced in

this ease from which the jury would have the right to

find that the speed of 12 to 14 miles per hour at which

the switching crew cut loose the box cars from the engine

was excessive under the conditions relative to grade, dis-

tances involved, ete. Banning himself was in control of

the box cars from that point on. We submit that there

is nothing to show that that speed was excessive under

these conditions, and that Banning’s testimony is entirely

@consistent with failure of judgment or negligence on his

own part and does not show negligence on the part of

sther employees of the railroad.

Conclusion

Cross-petitioner respectfully requests, for the reasons

stated, that a writ of certiorari issue out of this court to

review the decision of the United States Court of Appeals

for the Sixth Circuit in respect of ...e matter referred to.

CLIFFORD B. LONGLEY,

HENRY C. BOGLFE,

HAROLD A. JOHNSON,

Counsel for Cross-Petitioner.