Brief for the Respondent in Opposition — Healy v. Pennsylvania Railroad

IN THE

Supreme Court of the United States.

Seen

No. 427.

Ocroper Term, 1950.

el

ELIZABETH HEALY, Apmrnisrraterx or THE EstTaTE OF

Joun E. Heary, Deceasep,

Petitioner,

v.

PENNSYLVANIA RAILROAD COMPANY,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI.

ee

OPINION BELOW.

The opinion of the Court of Appeals for the Third

Circuit (R. 189) is reported in 184 F. 2d 209.

JURISDICTION.

The jurisdiction of this Court is invoked under the

Act of June 25, 1948, c. 646, 62 Stat. 928 (28 U. S.C. A,,

Section 1254).

\

QUESTION PRESENTED.

Whether the Court of Appeals erred in directing the

entry of judgment for respondent on the ground that on

the facts petitioner had failed to show any negligence on

the part of the respondent that contributed to the death

of the decedent.

ALR Lc natant j is ‘ PA Ra esc 5 AC a ee

2 Statute Involved—Statement

STATUTE INVOLVED.

Section 1 of the Federal Employers’ Liability Act

(Act of April 22, 1908, Chapter 149, as amended by the

Act of August 11, 1939; 45 U. S. C. A., Section 51) pro-

vides :

‘*Kivery common carrier by railroad . . . shall be

liable in damages to any person suffering injury while

he is employed by such carrier . . . for such injury or

death resulting in whole or in part from the negligence

of any of the officers, agents, or employees of such

na...”

STATEMENT.

The body of petitioner’s decedent, John E. Healy, was

discovered, having been fatally injured, on December 4,

“1944 beside respondent’s main line tracks at Cresson,

Pennsylvania. The facts concerning the accident are not

in dispute and were all shown by petitioner’s witnesses as

a part of petitioner’s case, and established merely the death

of the decedent, without any evidence of the cause of death

or that respondent could or should have done anything to

prevent it.

The deceased was a 44-year-old track laborer whose

regular place of work was 8 miles from the place of the

accident (R. 47a). Several days before the accident the

deceased was informed that a United States war bond rally

would be held on the morning of December 4, 1944 at the

Hall of the Loyal Order of Moose in the town of Cresson

(R. 41a). Attendance at the bond rally was not com-

pulsory and the employees could go or not, as they chose,

but those who did attend were paid for their time (R. 6la).

When the deceased left home on the morning of the

accident he told his wife that he was going to the bond

rally with the rest of the men and that he was also going

to the supervisor’s office to see what had become of ‘‘that

one bond he should have received before and didn’t re-

Statement 3

ceive’’ (R. 10a, 11a). No basis for his reported belief that

a bond was overdue was shown or existed. When he left

home he was wearing a tan top coat and a hunting cap,

which was brown and tan with blue stripes (R. 12a).

When the truck, which brought the decedent and others

from Gallitzin, arrived in front of the Moose Hall in Cres-

son, all the other men, including one who was 70 years old

(R. 65a), got off the truck unassisted, but tue deceased re-

mained in it (R. 53a). He told the older man, DeHaven,

that he did not feel well that morning, and asked to be

helped off the truck (R. 53a, 64a, 65a). DeHaven helped

the deceased get off the truck and walked with him from

the curb to the door of the Moose Hall (R. 54a).

This was the last time and place any witness saw Healy

alive. His body was subsequently found more than three

blocks away, beside one of the respondent’s tracks near

its Cresson station. There is a complete ‘‘hiatus’’ in the

evidence (R. 139a) between these two unrelated facts.

The respondent’s station in the town of Cresson was

three blocks north and west of the Moose Hall (R. 151a,

Plaintiff’s Exhibit 1). Cresson is on the respondent’s

main line from New York to Chicago and the tracks there

are elevated 15 feet above street level (R. 59a). The sta-

tion building was on the south side of the tracks, and the

supervisor’s office was on the north side of the tracks and

500 feet east of the station (R. 60a, Plaintiff’s Exhibit 1).

To permit safe passage from one side of the tracks to the

other, the respondent had constructed a pedestrian under-

pass or tunnel under all the tracks, from which covered

stairways led up to the waiting platforms and to the north

side of the tracks (R. 59a, 60a, Plaintiff’s Exhibit 1). Other

than by the safe route provided by the respondent through

the underpass, there was no way to get to the track level

except by climbing up over a 15 foot bank between the

street and the tracks (R. 59a). At the track level there

was a wooden baggage crossing which connected the station

building on the south side of the tracks with the platforms

4 Statement

between the tracks and on the north side. The platforms

were about 400 feet long and the baggage crossing was in

the center and thus about 200 feet from either end (Plain-

tiff’s Exhibit 1).

At about 8:20 A. M., a long freight train, in which

there were about 70 cars (R. 76a), was moving eastwardly

toward Cresson station at about 5 miles per hour (R. 13a,

14a, 15a, Plaintiff’s Exhibit D-1). The engineer on the

leading engine of this train was, at the time of the trial,

in a hospital, and the petitioner offered in evidence two

signed statements made by him and also offered portions

of his deposition, which had been previously taken by the

petitioner. The two statements were produced by the re-

spondent in response to petitioner’s subpoena and were

marked, respectively, D-1 and D-2. The petitioner then

offered the two statements in evidence as part of her case

(R. 36a, 37a), and suggested that they be renumbered as

petitioner’s exhibits. Because the statements had been

referred to previously (R. 32a), the trial judge preferred

not to change the numbers (R. 36a).

The engineer said (R. 154a, Plaintiff’s Exhibit D-2)

that it was daylight at the time, the weather was cold and

hazy, and there was snow on the ground. He had shut off

the power and was applying the independent brake because

the next block signal was set against him (R. 14a, Plain-

tiff’s Exhibit D-2), indicating that another train was pre-

ceding him by a short distance on the same track.

He was leaning out of the window on his side of the

cab and looking ahead (Plaintiff’s Exhibit D-2). The en-

gine was equipped with an automatic bell, which was

started ringing before the engine reached the west end of

the station, which rang constantly as the engine approached

and passed the station, and which continued to ring even

after the engine came to a stop (R. 23a, 24a, 26a, 33a, 34a,

35a). Although it was after 8 o’clock in the morning, the

engine headlight was on ‘‘dim’’, which ‘‘gives definite light

that any person can see’’, and the headlight was not ob-

structed by ice or otherwise (R. 21a, 22a).

Statement 5

As he approached Cresson station, the engineer saw

a man, dressed in an overcoat of a yellowish cast, who

crossed the tracks at the baggage crossing (R. 15a, 16a,

23a). This man crossed from south to north and ‘‘had

plenty of time’’, and the engineer testified that ‘‘from where

he was and the position I was in, I could get a full view of

the station, and he got clean over onto the station plat-

form’’, which was on the north side of the tracks (R. 15a,

16a, 20a). It was the petitioner herself who offered this

uncontradicted testimony, that the person referred to got

completely across the tracks in safety, and the petitioner

also offered the uncontradicted statement that the person

referred to was not the deceased (Plaintiff’s Exhibit D-2,

R. 155a). The engineer never saw the deceased until after

the accident (Plaintiff’s Exhibit D-2, R. 154a).

Like all the other witnesses in the case, the fireman

on the same engine was a witness for the petitioner. He

testified that his first duty was taking care of the fire and

the steam (R. 81a), but when the engine reached the west-

ern end of the station platform, he looked ahead and ob-

served the full length of the platform to its eastern end,

which was 400 feet away (R. 83a, 84a, Plaintiff’s Exhibit

1). When the engine came nearly to the eastern end of

the platform, the fireman leaned out of the cab window (R.

70a) to check the block signal, which was about 1600 feet

ahead of the station platform (R. 80a). He had to lean out

of the cab in order to see the block signal because the track

curved slightly to the right (R. 75a). As he did so, he

thought he saw a bag of rags rolling on the ground beside

the engine opposite its second or third driving wheel (R.

70a). He looked again and saw that it ‘‘was a shirt or a

man’s shirt or bag. It looked like a man then, rolling in

the 6 foot—that is, on the outside of the rail?’ (R. 70a).

The ‘‘6 foot’’ was the space between the platform and the

rail nearest to it, and the body was about 15 feet west of

the east end of the platform (R. 70a, Plaintiff’s Exhibit

D-2) and was therefore about 185 feet east of the wooden

6 Statement

baggage crossing (Plaintiff’s Exhibit 1). The fireman

called to the engineer to stop the train, the engineer im-

mediately applied the brake, and when the train stopped,

the body was still outside of the rails and was beside the

third car from the engine (R. 74a, 77a).

There was no evidence as to how long the body of the

deceased had been where it was first seen, and no evidence

as to how it got there. The block signal was set against

the train beside which the deceased was first seen, indi-

eating that another train was preceding it. The engineer

saw the man in the yellowish overcoat as he was crossing

the track at the baggage crossing and saw also that he

had gotten completely across the track. The engineer later

saw the body of the deceased lying on the ground 185 feet

beyond the crossing. The engineer’s uncontradicted testi-

mony was that the man in the yellowish overcoat and the

deceased were two different persons (Plaintiff’s Exhibit

D-2). Although there was snow on the ground (R. 155a),

there was no evidence that the body of the deceased had

been dragged. There was no evidence that the deceased had

come in contact either with the front of the engine or with

any part of the engine forward of a point 10 or 15 feet back

from the front end. There was no evidence that the body

of the deceased was in contact with any part of the engine

or train during the interval between the time the engineer

was told to stop the train and the time when the stop was

effected. The body remained in the same place, outside

of the rail, that it was when the fireman told the engineer

to stop the train (R. 77a). There was no evidence that the

deceased was ever under any wheel of the engine, and when

the fireman was specifically asked, he stated that the body

was beside the wheel of the engine (R. 74a). A brakeman

who was on the engine and went back to pick up the body

(R. 21a), was not called as a witness nor did the petitioner

offer any evidence whatever to indicate the nature of the

injuries suffered by the deceased, or the actual cause of

his death.

Siatement 7

At the conclusion of the petitioner’s case, the respond-

ent moved for a directed verdict (R. 132a) on the grounds

that there was no evidence of the cause of the death of the

deceased, no evidence of any negligence on the part of the

respondent, no evidence that any negligence on the part

of the respondent was the proximate cause of the death of

the deceased, and no evidence that the deceased was acting

in the course and scope of his employment at the time of

his death. The respondent’s motion was denied (R. 132a)

and the trial judge charged the jury that if the deceased

was on his way to the office of the supervisor in connection

with a United States war bond, he was, as a matter of law,

acting within the scope of his employment (R. 138a). Ex-

ception was taken to this portion of the charge (R. 148a)

and to the refusal of the trial judge to affirm the respond-

ent’s points for charge relating to the burden of proof as

to the proximate cause of the death. The jury returned a

verdict for the petitioner in the amount of $15,170.60. Re-

spondent’s motion for judgment in accordance with its

motion for a directed verdict was denied by the trial judge.

The Court of Appeals reversed the judgment of the trial

court for lack of proof ‘‘of any negligence on the part of

the defendant company which contributed to the accident’’

(R. 198a).

8 Argument

ARGUMENT.

The petition shows on its face that the question pre-

sented does not meet the requirements the Court has laid

down for granting of the writ of certiorari. Supreme Court

Rule 38 (5). The case involves no general principle that

requires or deserves review by this Court; the ultimate

question relates merely to the application of accepted prin-

ciples to the particular facts here involved.

In any event, the decision below was correct. The

petitioner’s proof was insufficient to justify submission to

the jury of the issue of respondent’s negligence. And even

if negligence should be assumed there was no evidence to

sustain a finding by the jury that any act or omission of

the respondent contributed to the death of the deceased.

I. This Case Presents No Question That Requires or

Deserves Review by This Court.

The only question presented in this case is whether the

Court of Appeals correctly held on the facts that the plain-

tiff had failed to make any showing that negligence on the

part of the defendant Company had contributed to the

death of the deceased. The decision of this question turns

on the particular facts involved. No general principle is

in controversy; the disputed issue relates merely to the

application of well settled rules to the circumstances of

this particular case. The decisions of this Court under

the Employers’ Liability Act disclose a consistent pattern

of principle, which is not disputed in this case. In cases

in which there is conflicting probative evidence, or in which

conflicting reasonable inferences may be drawn from pro-

bative evidence, this Court has held that the conflicts must

be resolved by a jury. On the other hand, if there is no

conflict in the evidence and no probative evidence from

which inferences favorable to the plaintiff can be drawn,

this Court has either denied certiorari or affirmed the de-

cision below. Roberts v. Alabama Great Southern Railroad

—

Argument 9

Co., 340 U. 8. 829 (1950) ;s Emmick v. Baltimore & Ohio Rai-

road Co., 340 U. S. 831 (1950) ; Roberts v. Missouri-Kansas-

Texas Railroad Co., 340 U. S. 832 (1950); Gentry v. Sea-

board Air Line Railroad Co., 340 U. S. 853 (1950) ; and see

the appendix to the concurring opinion of Mr. Justice

Douglas in Wilkerson v. McCarthy, 336 U. S. 53, 68-73

(1949). The case at bar falls in the latter category. All

of the evidence was offered by the petitioner. There is no

conflict in the evidence that requires resolution by a jury

and no basis in the evidence from which inferences favor-

able to the petitioner’s case may reasonably be drawn. The

evidence therefore did not meet the initial judicial test

which is a basic and integral part of the jury trial system.

The decision of the Court of Appeals is not in conflict

with the decision of another court of appeals on the same

matter, nor did the Court of Appeals decide any important

question of Federal law which has not been but should be

settled by this Court. None of the other grounds stated

in Rule 38 as the basis for granting a petition for a writ of

certiorari is present. The petition should be denied.

II. The Evidence Was Insufficient to Warrant Submission

to the Jury of the Issue of Respondent’s Negligence,

All of petitioner’s arguments are based upon two

premises which are (1) essential to her case, (2) com-

pletely unsupported by any evidence, and (3) the reverse

of the uncontradicted evidence she offered at the trial.

These premises are, first, that the decedent was injured

at a crossing where the respondent had a duty to anticipate

his presence, and, second, that the engineer saw the dece-

dent on the track but failed to warn him (Petitioner’s

brief pp. 3, 4, 10, 11, 12, 14). From the first of these two

false premises the petitioner raises a similarly unsound

corollary that the engineer and fireman both failed to ob-

serve the crossing as they approached it (Petitioner’s brief

pp. 4, 10, 11).

10 Argument

_ ‘The petitioner’s uncontroverted evidence, however,

showed that Healy, when first seen lying beside the track,

was not at the crossing but 185 feet away from it, where

there was no crossing of any kind. An engine moving at

5 miles per hour could not throw a man 185 feet ahead of

it, and although there was snow on the ground, there was

no evidence that the body was dragged, or that it was ever

in contact with the engine except at the moment the fireman

first saw it. The engineer saw the man at the baggage

crossing—who was not described as wearing a blue-striped

hunting cap which Healy wore—and later he saw Healy

185 feet away from the crossing. The only evidence was

that the engineer continuously observed the crossing and

saw the first man get ‘‘clean over onto the station plat-

form’’, that the man at the crossing and Healy were two

different people, and that the engineer never saw Healy

until his prone body was discovered beside the tracks on

the opposite side of the slowly moving engine. Likewise,

the petitioner’s uncontroverted evidence was that the engi-

neer was leaning out the window on his side of the engine,

looking ahead ; and the fireman, whose primary duty, as his

title implies, was taking care of the fire, looked ahead and

observed the full length of the platform when the engine

was at its western end, and looked again before the engine

reached the eastern end. It was this second time the fire-

man looked ahead that he noticed the body of the deceased

on the ground beside the tracks.

The petitioner states repeatedly (Petitioner’s brief pp.

3, 4, 12) that the approach of the train was ‘“noiseless’’,

yet her own uncontroverted evidence was that the train

consisted of about 70 freight cars, at the head of which was

a large over-the-road steam engine, whose automatic air-

controlled bell began to ring before the engine reached the

far western end of the platform, and continued to ring con-

stantly until after the decedent’s body was discovered and

the engine stopped. Throughout that period during which

the engine headlight was on and its bell constantly ringing,

Argument il

the train was moving at 5 miles per hour, a rate of aaane

which many people can walk.

As the Court of Appeals pointed out (R. 193, 194),

the petitioner simply failed to prove any negligence at all

and certainly none which contributed in whole or in part

to the accident because, on viewing the record in the light

most favorable to the petitioner, there was no evidence

from which an inference could be drawn that Healy was

ever on the track—either at the crossing where the re-

spondent might have anticipated him, or at the point where

his body was found—or that Healy had ever been in a posi-

tion of danger near the track and ahead of the engine at a

time when he could have been seen and avoided, or that a

blow from the engine caused his death. This is the basic

difference between the petitioner’s case and all the deci-

sions of this Court upon which she reliés, in each of which

there was affirmative evidence pointing directly to an act

of negligence as the cause of the accident or to a violation

of the Safety Appliance Act which made proof of negli-

gence unnecessary.

Thus in Tiller v. Atlantic Coast Line R. R. Co., 318

U. S. 54 (1943) there was evidence that in the course of his

work Tiller was checking car seals in a classification yard

where the defendant knew, or should have known, that such

work was regularly conducted. He ‘‘was standing between

two tracks’’ at night ‘‘using a flashlight’? when he was

struck by the rear of a negligently unlighted train backing

toward him. In Bailey v. Central Vermont Ry., 319 U. S.

350 (1943) Bailey, in the course of his work, ‘‘walked out

on the stringer on the bridge’’ which was ‘‘18 feet above

the ground’’ and where ‘‘the only available footing was

about 12 inches wide’’ and where ‘‘there was no guard

rail”. He was attempting to open the doors of a hopper

car with a large wrench, which the defendant knew might

jerk violently when Bailey accomplished what he was trying

todo. In Tennant v. Peoria & P. U. Ry., 321 U.S. 29 (1944)

Tennant’s ‘‘duties included staying near the rear or north

12 Argument

end of the engine as it made a backward movement’’, ‘‘the

engine had remained stationary for several minutes, dur-

ing which time the engineer saw Tennant disappear in the

direction of the subsequent engine movement. Still not

knowing the precise whereabouts of Tennant, the engineer

then caused the engine and cars to make an extended back-

ward movement’’ without ringing the engine bell. In Blair

v. Baltimore & Ohio R. R. Co., 323 U. 8. 600 (1945) in the

course of his work and over his objection, Blair was “‘com-

manded’’ to move, by means of a small hand truck, three

slippery steel tubes, each 30 feet long and weighing 1,000

pounds. When one of the tubes started to slip from the

small truck, two fellow workers let go, which caused the

truck to kick back and injure the plaintiff. In Lavender v.

Kurn, 327 U. S. 645 ( 1946) there was ‘‘evidence that

Haney’s duties required him to wait at the switch north

of the track’’. His body was found close to the switch

where his duties required him to be and where his presence

should, therefore, have been anticipated. ‘‘The curled end

[of the mail hook] could thus be swung out to a point 3%

feet from the rail and about 73 inches above the top of the

rail’. There was undisputed medical testimony that the

cause of death was a fracture of the skull by ‘‘some fast

moving small round object’? and evidence that the cause

of death was a blow from a mail hook swinging out from the

side of a train moving past a point where the decedent

could reasonably have been anticipated.! :

1. Myers v. Reading Co., 331 U. 8. 477 (1947) and

Coray v. Southern Pacific Ry., 335 U. S. 520 (1949), cited

by petitioner, were both decided under the Safety Appliance

Act, which did not require an independent determination of

negligence because of the absolute duty imposed by that

Act. In the Myers case a hand brake unexpectedly kicked

back and threw the plaintiff to the ground and, in the Coray

case, ‘‘the train unexpected] stopped . . . because the

air in its brake lines ssueed, thereby locking the brakes

-_+ + because of the violation of the Federal Safety Ap-

pliance Act . . .”’,

—————

Argument 13

In each of the cases cited by petitioner there were

probative facts from which both the negligence of the de-

fendant and the causal connection between that negligence

and the injury for which recovery was sought could reason-

ably be inferred. The irreconcilable difference between all

those cases and the instant case is the complete absence

here of probative facts which are necessary prerequisites

of jury consideration.

Negligence cannot be determined in a vacuum. It is

the lack of due care ‘‘under the circumstances’’. The

Court of Appeals for the Third Circuit is an able court

thoroughly familiar with the Employers’ Liability Act and

the decisions of this Court thereunder, and is aware of a

widely held feeling that the Act is sociologically deficient,

but as it said in a decision which was affirmed by this

Court ?: ‘‘But so long as the law is that the defendant must

be negligent for the plaintiff to recover for his injuries it

is our responsibility to apply the negligence test honestly

and not to pretend that there is negligence when it does not

exist. It does not exist in this case’’.

III. There Was No Evidence to Sustain a Finding That

Any Negligence of the Respondent Caused or Con-

tributed to the Injury.

In order to establish the right of recovery claimed

under the Employers’ Liability Act, the petitioner was re-

quired to prove not only that the defendant was negligent,

but also that such negligence was the proximate cause, in

whole or in part, of the injury for which suit was brought.

Tiller v. Atlantic Coast Line R. R. Co., 318 U. 8. 54 (1943) ;

Tennant v. Peoria & P. U. Ry., 321 U. 8. 29 (1944). ‘*The

carrier’s negligence must be a link in an unbroken chain of

reasonably foreseeable events’’: Brady v. Southern Ry.

Co., 320 U. S. 476, 484 (1943).

2. Eckenrode v. Pennsylvania Railroad Co., 164 F. 2d

996, 1000 (C. C. A. 3rd, 1947) Aff’d, 335 U. S. 329 (1948).

—

14 Argument

The necessity of a proximate causal relationship be-

tween the negligence alleged and the injury, was recently

illustrated in Reynolds v. Atlantic Coast Line R. R. Co.,

336 U. S. 207 (1949). Under the applicable state practice,

the plaintiff there set forth all the facts proposed to be

proved at the trial, and the defendant demurred on the

ground that the facts set forth did not constitute a cause

of action. The demurrer was sustained by the trial court,

by the State Supreme Court and by this Court, which said

at 336 U. S. 207, 208, 209:

‘‘The Alabama Supreme Court conceded that the

complaint adequately charged negligence . . . It held,

however, that the facts alleged did not show that the

accident resulted proximately, in whole or in part, from

that negligence. We cannot say that the Supreme

Court of Alabama erred.’’

Although in his charge to the jury the trial judge in-

ferred (R. 139a) that the engineer saw the deceased cross-

ing the tracks at the baggage crossing, after which the

trial judge said there was ‘‘an unfortunate hiatus’’ in the

evidence, his inference was exactly the reverse of the peti-

tioner’s uncontradicted evidence that no witness saw the

deceased alive except when he was over three blocks away

complaining that he did not feel well. Although the trial

judge referred to the body found beside the train as “a

mangled body’’ (R. 138a) the record is completely devoid

of evidence supporting such a statement. Neither the con-

dition of the body nor the cause of death was shown. The

simple and only fact proven was that the body of the de-

ceased was on the ground outside of the tracks on the left

side of a slowly moving eastbound engine. It is absolutely

impossible to state or infer how long the body had been

where it was found, whether in reaching that position the

deceased had been walking or running or standing, or, if

moving, whether he had been moving north, south, east or

west. It is equally impossible to state or infer whether

Argument 15

Healy was alive or dead when the fireman first saw him and,

since the body remained in the same place outside the rail

while the train was being stopped, it is impossible to infer

that the immediate ‘‘service’’ rather than ‘‘emergency’’

application of the brakes contributed in the slightest to

the decedent’s injury.

The impossibility of establishing the causal relation-

ship between the respondent’s alleged negligence and the

death of the deceased in such circumstances was shown in

Trust Co. of Chicago v. Erie R. R. Co., 165 F. 2d 806, 809,

810 (C. C. A. 7th, 1948) Cert. den. 334 U. S. 845 (1948) :

‘**Tt is all speculation as to the manner in which

the decedent met his death. That is the trouble with

the plaintiff’s case. One can speculate on how the

accident happened, but where is the evidence as to how

it did happen? Where is the evidence from which a

reasonable inference could be drawn as to how it hap-

pened? Many reasonable hypotheses as to how the

accident happened may be conjured up, but it is not

reasonable hypotheses we are interested in, but evi-

dence from which reasonable inferences may be

drawn... .

‘*A jury may not speculate and formulate a plaus-

ible theory as to where the accident happened and how

it happened, and then speculate on what it was that

the defendant did that was negligent and caused the

accident. If there is some conflict in the evidence as to

what the defendant did or did not do, which it should

or should not have done, there may be a conflict for a

jury to resolve, as was stated in Lavender v. Kurn,

327 U. S. 645, 653, 66 S. Ct. 740, 90 L. Ed. 916. In our

case, there is no conflict in the evidence. There is a

woeful lack of evidence, which would leave a jury to

nothing but speculation. The Supreme Court has re-

cently said that where the jury is left to speculation

only, the trial court must step in and direct a ver-

16 Argument

dict. . . . The plaintiff argues that there was death

by the defendant’s train, therefore the defendant was

negligent. That is arguing backward from effect to

cause and not from cause to effect. The plaintiff must

first prove the defendant’s negligence which caused

the injury. This it clearly failed to do.’’

If the petitioner had produced evidence as to where

the deceased was, and that he was alive and in a position

of danger for a sufficient interval of time to permit the

train crew to see him and avoid coming in contact with

him, her evidence would have warranted submission of the

ease to the jury on the issue of whether the respondent's

negligence was the proximate cause of his death—but she

did not do so. [Cf. Mostyn v. Delaware L. & W. R. Co.,

160 F. 2d 15 (C. C. A. 2nd, 1947) Cert. den. 332 U. 8. 770

(1947), in which the plaintiff was shown to have been

asleep on the track.] In Boston & Maine R. R. v. Coppel-

lotti, 167 F. 2d 201 (C. C. A. 1st, 1948) the plaintiff made

out a very much stronger case than was done here, in that

the defendant there admitted that the deceased was struck

by an engine while he was lying on the track. However the

court said, pp. 203, 204:

‘“‘The laborer wanders out of sight. A regular

scheduled train comes through. . . . Weare told only

that the decedent while lying on the track is run over.

How the decedent got there and how long he had been

there is left to conjecture. . . . On the basis of this

meager evidence, we are asked to sustain a jury find-

ing for the plaintiff. Yet the Supreme Court has said

that the burden is on the plaintiff to present probative

facts from which negligence and causal relation could

reasonably be inferred; that the essential requirement

is that mere speculation not be allowed to do duty for

probative facts, after making allowance for all reason-

able possible inferences favoring the party whose case

is attacked. . . . There is no evidence to support an

Argument 17

inference that the decedent was on the track in the

path of the locomotive a long enough time before the

accident to give the engineer an opportunity to take

action to avoid running over him. We are told that

the fact that the decedent while lying on the track is

run over at a place just before an area where a large

group of men is working is enough to support a jury’s

finding of negligence on the part of the engineer re-

sulting in death to the decedent. Even if it could be

said that such an accident is an extraordinary occur-

rence which does not usually occur in the absence of

negligence, there is no basis for a jury’s finding that

it was some act of the defendant rather than of the

decedent that caused the accident. There is no evi-

dence—either circumstantial er direct—from which

negligence of the defendant can reasonably be in-

ferred.’’

In the instant case there was likewise no basis for a

jury’s finding that it was some act of the respondent,

rather than of the deceased, that caused his death, and the

lower court therefore properly entered judgment for re-

spondent.

It is also obvious that petitioner’s references to the

absence of a whistle signal are not helpful. They ignore

completely the facts established by the petitioner herself,

that no rule or regulation required the whistle to be blown

(R. 108a), that the only person known to have been on or

near the track before the accident crossed it in safety and

was not the decedent (R. 15a, 16a, 20a, 155a), and that

there was nothing to show any possible connection between

lack of a whistle on a slowly moving train (R. 15a) whose

bell was ringing (R. 24a, 35a) and the death of a man who

was not shown by any evidence to have suffered any vio-

lence or injury whatever.

This Court has repeatedly denied certiorari, or affirmed

the entry of judgment for respondent, where the petitioner

failed to show negligence on the part of the respondent

18 Argument

which caused or contributed to the injury. Brady v. South-

ern Ry. Co., 320 U. S. 476 (1943) ; Fantini v. Reading Co.,

147 F. 2d 543 (C. C. A. 3rd, 1945) Cert. den. 325 U. S. 856

(1945) ; Scarborough v. Pennsylvania R. R. Co., 149 F. 2d

636 (C. C. A. 3rd 1945) Cert. den. 326 U. S. 755, Re-hearing

denied 326 U.S. 809 (1945) ; Chisholm v. Reading Co., 157 F.

2d 768 (C. C. A. 3rd 1946) Cert. den. 329 U. S. 807 (1947) ;

Trust Co. of Chicago v. Erie R. R. Co., 165 F. 2d 806 (C. C.

A. 7th, 1948), Cert. den. 334 U. S. 845 (1948) ; Eckenrode v.

Pennsylvania Railroad Co., 335 U. 8. 329 (1948) ; Reynolds

v. Atlantic Coast Line R. R. Co., 336 U. S. 207 (1949);

Scocozza v. Erie R. R., 171 F. 2d 745 (C. C. A. 2d, 1949)

Cert. den. 337 U. S. 907 (1949). Certiorari should there-

fore be denied in this case also.

IV. Petitioner Was Not Improperly Deprived of a Jury

Trial.

In her brief, petitioner apparently deliberately misin-

terprets the opinion of the Court of Appeals as having

required the petitioner to prove the causal connection be-

tween the alleged negligence of the respondent and the

injury for which suit was brought ‘‘with mathematical or

absolute certainty’’ (Petitioner’s brief p. 9). Such is

clearly not the effect of the decision of the lower court which

held, in accordance with the decisions of this Court, and in

accordance with the basic concept of the Anglo-Saxon jury

trial system, that before a proponent is entitled to have

his case submitted to a jury he must first present probative

facts to support the conclusion he seeks. This basic con-

cept has been variously expressed. Thus in Lavender v.

Kurn, 327 U. S. 645 (1946) the Court made it clear that

there must be ‘‘an evidentiary basis for the jury’s verdict’’

and ‘‘when there is a complete absence of probative facts

to support the conclusion reached’? it is ‘‘reversible error’’

to let a jury verdict stand.

In Brady v. Southern Ry. Co., 320 U. S. 476 (1943)

this Court said at page 479:

Argument 19

‘The weight of the evidence under the Employers’

Liability Act must be more than a scintilla before the

case may be properly left to the discretion of the trier

of fact—in this case, the jury. Western & Atlantic R.

Co. v. Hughes, supra; Baltimore & Ohio R. Co. v.

Groeger, 266 U. S. 521, 524. Cf. Gunning v. Cooley,

281 U. S. 90, 94; Commissioners v. Clark, 94 U. S. 278,

284. When the evidence is such that without weighing

the credibility of the witnesses there can be but one

reasonable conclusion as to the verdict, the court should

determine the proceeding by non-suit, directed verdict

or otherwise in accordance with the applicable prac-

tice without submission to the jury, or by judgment

notwithstanding the verdict. By such direction of the

trial the result is saved from the mischance of specu-

lation over legally unfounded claims.”’

As Professor Wigmore said in IX Wigmore on Evi-

dence, § 2487:

‘Apart from the distinction of functions between

judge and jury, these rules need have had no existence.

They owe their existence chiefly to the historic and

unquestioned control of the judge over the jury, and

to the partial and dependent position of the jury asa

member of the tribunal whose functions come into play

only within certain limits.

‘‘The treatment of the situation, and the operation

of the rules, can best be comprehended by keeping this

consideration in mind, namely, that the oppcrtunity to

decide finally upon the evidential material that may be

offered does not fall to the jury as a matter of course;

that each party must first with his evidence pass the

gauntlet of the judge; and that the judge, as a part

of his function in administering the law, is to keep the

jury within the bounds of reasonable action. In short,

in order to get to the jury on the issue, and bring into

play the other burden of proof (in the sense of the

—_——a

Conclusion

risk of non-persuasion of the jury), both parties alike

must first satisfy the judge that they have a quantity

of evidence fit to be considered by the jury, and to

form a reasonable basis for the verdict. This duty of

satisfying the judge is peculiar in its operation, be-

cause if it is not fulfilled, the party in default loses,

by order of the judge, and the jury is not given an

opportunity to debate and form conclusions as if the

issue were open to them.’’ (Emphasis by Professor

Wigmore.)

CONCLUSION.

The respondent submits that the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Puuur Price,

Hues B. Cox,

James G. JoHNSON, JB.,

Haroxtp P. Dicks,

Attorneys for Respondent.

INDEX

PAGE

Petition for Re-Hearing of Original Petition for Cer-

SO FCS OS keh so tae USP Oia ees 1

Decision and Judgment of the Court Below ......... 2

Nature of Case and Summary Statement of Matter In-

EE ae aieu aa baie ears €o Sleek SPE TN N ge OF <a 2

MAMAN DUNUDONCTIOM . 0. ccc ccc cc cc ccccecec vanes 2

Questions Presented ................ eee ee eee eeeees 3

Reasons Relied Upon for Allowance of Petition ...... +

ME 6c owen cee cngecs Cpereeseudveeveweesecgeess 6

Argument in Support of Petition for Re-Hearing ..... 6

I. The decision of the Court below is in conflict

with the settled interpretation of the Federal

Employers’ Liability Act and, if allowed to stand,

will provoke excessive litigation .............

Il. Certiorari should be granted where error is not

in possible misevaluation of the facts, but rather

in the legal principles relied upon ............

III. The question of causal relation between the neg-

ligence and the fatal injury was one of fact ex-

clusively for the jury .................-.455-

os ww ae waeasetane «4%

13

19

TABLE OF CASES CITED

PAGE

Alltmont, et al. v. U. S., et al., 177 F. 2d 971 (C. A. 3,

1949), cert den. 339 U. S. 967, 70 S. Ct. 999 (1950).. 17

Atlantic Coast Line R. Co. v. Driggers, 279 U. S. 787, 49

he Se MD CRO 400. bens eave ao kia woh eekk 6

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

WE SHED os oe bk er pa es ic kvike ccc

Blair v. B. & O. R. Co., 323 U. S. 600, 65S. Ct. 545 (1945) 16

Brady v. Southern Ry. Co., 320 U. S. 476, 64 S. Ct. 232

RUNES Shel Fev d bbc uNin Aco oeh ec oe hoocreuees 12, 17

Cardillo v. Liberty Mutual Insurance Co., 330 U. S. 469

Pe Ne To eine Sa ees bk ebb b be kes 13

Carter v. Atlanta & St. A. B. Ry. Co., 338 U. S. 430, 70

ei Sd MN RMD Sh SEEK iv viens voseavs 8, 9, 13, 14, 15

Casey v. American Export Lines, 173 F. 2d 324 (C. A. 2,

a Ee OT COR Bao PERCE ed ENA gee NALS SE 5

Chamberlain v. Pennsylvania R. Co., 288 U. S. 333, 53

We Mate Me AND 6s wh ov cakes caccac cic ok: 12, 16

Chesapeake & O. R. Co. v. Nixon, 271 U. S. 218, 46 S. Ct.

TE EE oe oaks va akeavlck haus bee AKcc reek 6

Chisholm v. Reading Co., 157 F. 2d 768 (C. A. 3, 1946),

cert. den. 329 U.S. 807, 67 S. Ct. 502 (1947) ...... 17

Coray v. So. Pac. Ry., 335 U. S. 520, 69 S. Ct. 275 (1949) .4, 14

DeBruce v. Pennsylvania R. Co., D. C. E. D. Pa., Civil

Action No. 5477 (1947), 6 F. R. D. 403 (1947) .... 18

DeVane v. U. S. Court of Appeals for Fifth Circuit, cert.

den. Mar. 5, 1951, No. 302 Misc. Dkt., U. S. Su-

IE SI i oak ooo cs Rey EPH S 12

Eckenrode v. Pennsylvania R. Co., 335 U. S. 329, 69 S.

ig We ND sok Ch lock eke hates 9,17

PAGE

Eglsaer v. Scandrett, 151 F. 2d 562 (C. A. 7, 1945) ....5,14

Eiseman v. Pennsylvania R. Co., 151 F. 2d 222 (C. A. 3,

OEE: Fic a4 he SND keke ee ...5, 10

Ford Motor Co., et al. v. Ryan, 182 F. 24 329 (1950) .... 12

Galloway v. U.S., 319 U. S. 372, 63S. Ct. 1077 (1943) .. 12

Headrick v. Atchison, T. & S. F. Ry. Co., 182 F. 2d 305

CRE OF 0k eV KS he ES Kee e ocele CURES 12

Hickman v. Taylor, 153 F. 2d 212 (C. A. 3, 1945), cert.

den. 327 U. S. 808, 66 S. Ct. 961 (1946), vacated 328

U. S. 816, 66 S. Ct. 1337 (1946), 329 U. S. 495, 67 S.

ah, Oe CRIED Sek ced eewen cud Rem Hats Oe 5,18

Jamison v. Encarnacion, 218 U. S. 635, 50 S. Ct. 440

SUED is sxiee 0b 62a sd ORE SE SAVER eee oe 8

Jones v. East Tenn. R, R., 128 U. S. 443 (1888) ........ 8

Kilpatrick v. Texas & P. Ry. Co., 337 U. S. 75, 69 S. Ct.

Wy SRE ds 6p cis ERs a pn ce Saas s sa cues oc 12

Kurimsky, Admx. v. Unity Rys. Co., 357 Pa. 521, 55 A.

Be IEE she's satiny s'nss & ese eRe eeeeaniet 5

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

PEE Weal nee Da wad os Wane eRe aaa 4,10, 12, 14,19

Lilly v. Grand Trunk R. Co., 317 U. S. 481, 63 S. Ct. 347

CONE ek aad LES oo CEN STEEN IES eee habeus 16

Lukon v. Pennsylvania R. Co., 131 F. 2d 327 (C. A. 3,

RS ir 28s Geb wk eK Ais oa Kae RRO RR 16

Lustig v. United States, 338 U. S. 74, 69 S. Ct. 1372

REESE STIRS aH RN nes SIRE Saas a eo ae ae Ca 12

McCarthy v. Pennsylvania R. Co., 156 F. 2d 877 (C. A.

at | ERR SESE 8 RUN GS a Pape a Bo dea ark gaan 14

Moore v. Chesapeake & O. R. Co., 71 S. Ct. 428 (1951) .12, 17

Murray v. Philadelphia Transportation Co., 359 Pa. 69,

5 85 | | Se ARSE eset eee-rrcras 11

Myers v. Reading Co., 331 U. S. 477, 67 S. Ct. 1334

CG sce eK Se Cia bb RON SEER LCE DAarieeyen se tes 12

INDEX

PAGE

O’Donnell v. Elgin, Joliet & Eastern Ry. Co., 338 U. S.

OO Pe es CO oo oe ovvc occ ecco 7,14

O’Leary v. Brown-Pacific-Maxon, Inc., 71 S. Ct. 470

Be ANH ASE SAE URE RN RE PERE OR em NGS 13

Penn v. Chi. & N. W. Ry. Co., 163 F. 2d 995 (C. A. 7,

1947), 335 U. S. 849, 69S. Ct. 79 (1948) .......... 4,15

Pezzulli, Admr. v. D’Ambrosia, 344 Pa. 643, 26 A. 2d 659

We tA ss ck 11

Raudenbush v. Baltimore & O. R. Co., 160 F. 2d 363

Weer et MO ss COR. 2h da as hoa oh ano Sh oR 8

St. Louis Southwestern Ry. Co. v. Ferguson, 182 F. 2d

SL I OC nk vb voc on cuk Cosas acces 15

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

OT ees yn nk wkd daemcekes ci 4, 7,12, 14, 16

Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 63 S.

Rey CED Ah oR cocks ken caus 7, 9, 10, 11, 14, 16, 19

United States v. Shaughnessy, 338 U. S. 521, 70 S. Ct.

NII. tax oes ate ois Gua ch cdck den ciekal.. 12

Urie v. Thompson, 337 U. S. 163, 69 S. Ct. 1018 (1949)... 7

Vetter v. Great A. & P. Tea Co., 322 Pa. 449, 185 A. 613

| Aas ERA Tie in le ae eae Ne et a 2 17

Wilkerson v. McCarthy, 336 U. S. 53, 69 S. Ct. 413

ies seni eels i cohke ence oc 7, 9,13, 19

TABLE OF AUTHORITIES CITED

Frankfurter and Landis, The Supreme Court at Oc-

tober Term, 1931, 46 Harv. L. Rev. 226 (1932) .... 13

Holmes, The Common Law 38 (31st printing) (1938) .. 7

Richter and Forer, Federal Employers’ Liability Act—

A Real Compensatory Law for Railroad Workers,

PRUNE GA, OE UE RODE) cdccnsecvccevecteuecas 9, 13

INDEX

TABLE OF STATUTES CITED

PAGE

Boiler Inspection Act, Title 45 U. S. C. A. §51, et seq. 7

Federal Employers’ Liability Act, Title 45 U.S.C.A.§56 2

ee ee ee re ee rer 8

Safety Appliance Acts, Title 45 U.S. C. A. §§1-23 ..... 7

Survival of Action Statute, P. L. 2755 (Pa., 1937) .... 11