Brief for the Respondents in Opposition — Craven v. Atlantic Coast Line Railroad

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OPINIONS OF THE CourRT BELOW .....0.......222222:2:ccc:cceceeceeceeeeee 1

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IV THE QueEsTiIoNs BEFORE AND THE DECISIONS OF THE LOWER

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Table of Cases

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Moore v. C. & O. R. Co., U.S., decided February 26, 1951 _........ 15

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

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Vilsock v. N.Y. & O. Coal Co., 256 Pa. 90, 100 Atl. 530 000... 19

Waller v. No. Pac. Terminal Co., Oreg. (1946), 166 P. 2d 488

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Wiggins v. S.A.L. Ry. Co., 154 N.C. 577, 70 S.E. 932 0000.00... 18

Wolfe v. Henwood, 162 F. 2d 990 (cert. den. 332 U.S. 733) ........ 19

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Supreme Court of the United States

October Term 1950

No. 539

CLARENCE O. CRAVEN,

Petitioner,

V.

ATLANTIC COAST LINE RAILROAD

COMPANY,

Respondent.

BRIEF OF RESPONDENT ATLANTIC COAST LINE

RAILROAD COMPANY IN OPPOSITION TO

THE PETITION FOR WRIT OF CERTIORARI

I

OPINIONS OF THE COURT BELOW

The opinions of the court below are to be found at the

places indicated in the brief of petitioner.

II

JURISDICTION

The jurisdiction of this court is not controverted. It is,

however, submitted that none of the reasons enumerated

in Rule 38-5 of the Revised Rules of this court as suffi-

cient to warrant consideration on review on writ of cer-

tiorari, is applicable to the matters presented by the petition.

Me SE ATI RES ORE ETE PORES CR NORE FN

2

III

QUESTIONS PRESENTED

The questions presented by the petition are subject to

more succinct and, we believe, more accurate statement than

that contained in the petition. No matter how dressed in

verbiage they may be, they are factual. They are two in

number: (1) Is there evidence in this record of negligence

on the part of the defendant? and (2) If so, is there evidence

in this record that such negligence was a cause, either sole

or contributing, of the injuries suffered by the plaintiff ?

IV

THE QUESTIONS BEFORE AND THE DECISIONS

OF THE LOWER COURTS

In addition to the two questions presented to this court

there were also before the District Court the following

questions: (1) Was the plaintiff at the time he was injured

engaged in interstate commerce or in any work in further-

ance thereof or directly, closely, or substantially affecting |

such commerce? (2) Did the evidence so clearly prove the

negligence of the plaintiff as to require that the jury be

charged that he was guilty of negligence, or was that a

question for the jury? and (3) There were certain questions

relating to the charge not necessary here to mention, save

one :—the plaintiff had requested the court to charge that

the jury might conclude that defendant had been guilty of

negligence with respect to the conditions of the end of the

gondola car on which he stepped ( Reporter’s transcript pp.

282-3, 286; R. p. 41). This the District Court had advised

counsel it would not charge, because there was no evidence

of any defect. Despite this advice from the court, plaintiff's

counsel argued a possible defect at some length. Neverthe-

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3

less the court failed to charge that the duty of keeping cars

in proper condition was not involved in this case. (Reporter’s

transcript pp. 282-3, 286; R. p. 41).

The District Court held the plaintiff was engaged in inter-

state commerce at the time he was injured. It held that there

was evidence of negligence on the part of defendant suff-

cient to take that question to the jury. It never decided

whether or not there was evidence of causal connection suffi-

cient to take that question to the jury; it held there need

be no evidence from which an inference of causal connection

might be drawn,—that there need be no proof of causal

connection because “if any negligence is shown the jury

are the sole judges of whether it is reasonably possible to

infer a causal relationship between the act of negligence and

the injury” (R. p. 45). The District Court left to the jury

the question whether the plaintiff was guilty of negligence

(R. p. 37, 39), but in its opinion it held that plaintiff was

guilty, as a matter of law, of contributory negligence, for it

said:

“There can be no doubt concerning the contributory

negligence of the plaintiff * * * .” (R. p. 44)

But, despite these errors in the instruction, it declined to

grant a new trial.

In other respects the District Court found no error in the

instruction.

The Court of Appeals had before it all the questions

presented to the District Court. It held that plaintiff was

engaged in interstate commerce at the time he was injured.

It held that there could be recovery “only upon the con-

currence of negligence and injury as cause and effect’’ and

that there was no evidence from which “a jury could have

found either”. (R. p. 135).

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This, of course, disposed of the case.

But, in addition the Court of Appeals held that the plain-

tiff was guilty of negligence as a matter of law, that his

“recklessness and not the assumed negligence of defendant,

exposed plaintiff to unnecessary danger and caused his

injury”. (R. p. 138).

The Circuit Court also very clearly in the first paragraph

beginning on page 139 of the Record held that the action

of plaintiff’s counsel in arguing to the jury a possible defect

in the gondola car, and the failure of the court to cover that

matter in its charge, had permitted the jury to speculate upon

a possible defect, and there was no evidence of any defect,

and that this was error.

It seems to be implicit in the opinion of the Court of

Appeals that the action of the District Court in leaving to

the jury the question of the negligence of the plaintiff, when

that negligence was proved as a matter of law, and the

action of the District Court in permitting the jury to specu-

late upon a possible defect in the gondola car when there was

no evidence of any defect, would have required a reversal

of the judgment of the District Court and a remanding of

the case for a new trial, had not the lack of any evidence of

negligence on behalf of defendant and the lack of any

evidence of causal connection demanded that the case be

reversed and remanded to the District Court with instruc-

tions to enter judgment for the defendant.

Vv

SUMMARY OF ARGUMENT

It is our contention that no reasonable view of this evi-

dence establishes any negligence on the part of the defend-

ant, and that if any of the three actions of defendant which

petitioner assumes to have been negligent, were negligent,

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there was no legal causal connection between that action and

the injuries sustained by the plaintiff. The plaintiff was

injured solely as a result of his own recklesness and by

reason of his own inexcusable impatience, best stated in his

own words:

“IT didn’t see no reason why I should stand there and

wait for that train to make the operation that it was

going to make.” (R. p. 24);

And again:

“T had been on duty and was tired and I didn’t want to

keep standing there and losing my rest period.” (R.

p.25)

He accordingly did a thing which every sentient human

being knows to be dangerous. He did it of his own volition;

he was under no compulsion to do it. He did it because of

impatience; he did it intentionally, fully aware of all the

circumstances and potential dangers. For injuries so sus-

tained the defendant is not liable.

VI

ARGUMENT

1. Certain Corrections.

The factual statements, as well as certain statements con-

cerning the procedure, contained in petitioner’s brief are so

clearly erroneous that certain corrections will be made at

this point and others in the brief statement of fact which

follows.

We do not understand either the pertinence of a statement

repeatedly made, or how it is possible for any person familiar

with this proceeding repeatedly to state. as does the peti-

—

6

tioner, that no objection or exception was taken to the

charge to the jury. Petitioner says:

“The trial court, * * * , submitted to the jury the issues

of primary negligence, contributory negligence and

cause and effect in simple and fair language to which

there was no objection or exception.” ( Petitioner's

brief, p. 7).

“The charge contains a correct statement of the legal

principles applicable, and no exception being taken

thereto, * * *.”” (Petitioner's brief, p. 13)

“The instruction of the court to the jury is binding for

purposes of appeal because no exception was taken

thereto.” ( Petitioner's brief, p. 28)

«x * * under a charge to which there was no exception.”

( Petitioner's brief, p. 29)

The objections to the charge stated in the Record at the

conclusion of the charge are found on pages 285-8 of the

reporter's transcript. They are nine in number. Defendant

had moved for a directed verdict, in part upon the ground

that there was no evidence of negligence and that there was,

of course, no evidence of causal connection. In addition, it

specifically objected to the charge because the court had

stated that certain duties rested upon the defendant and

“there is no evidence in this case from which a violation of

any one of those duties might be inferred and if perchance

there be such, there is no evidence from which it could be

found that any negligent act caused in whole or in part the

injury sustained by the plaintiff.” Detailed objection was

made in many other respects. If further refutation of these

unwarranted assertions contained in the petition be needed,

we refer to defendant's motion to set aside the verdict and

to enter judgment for the defendant and its alternative

motion for a new trial found on pages 40-43 of the record,

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2. Summary Factual Statement.

The yards of defendant at South Rocky Mount are a very

large terminal and consist of three yards. Plaintiff's Ex-

hibit No. 3, the aerial photograph reproduced in his brief,

shows only the northern portion of the “north yard.” It

shows nothing of the yard immediately to the south thereof,

i.e., the “local yard,” or the yard immediately to the south

thereof, ie., the “south yard.”

Plaintiff's Exhibit No. 9 is a lengthy blueprint on a scale

of one inch to a hundred feet of the north yard, the local

yard, and just the bare beginning of she south yard. (Re-

porter’s transcript p. 75, R. p. 98). With this brief we file

with the Clerk a sufficient number of copies of this exhibit

(which is too bulky to be bound with the brief) to be dis-

tributed to the members of the court, along with the brief.

This we do for two reasons. It gives a much more accurate

picture of the physical conditions than can be gotten from

any other source and, as we hereafter show, it is a complete

and final answer to the contention of the plaintiff that had

the walkway been moved to the north it would have been

a safer walkway.

On this plat and toward the north end, there is shown

“Restaurant”, the building which all through the evidence

is referred to as the “Yard Office” or the “C O Office”.

Immediately to the south of that office is the telegraph office

and behind that is a toilet and washroom.

Immediately behind these buildings are the hostler tracks,

and immediately to the south of them are the ladder tracks

of the north yard, to which it will be noted access may be,

and is had, both from the north and from the south.

On the face of this plat it will be noted that at the south

end of the local yard there is another vard office, which would

seem to be a refutation of the statement that all business in

8

the whole terminal is conducted from the yard office in the

north yard. Whether there is an office in the south yard is not

disclosed by this evidence, but this evidence discloses that as

much business is conducted in the south yard as in the north

yard (R. p. 99).

We do not controvert the statement made by the Court

of Appeals that this group of buildings is the focal point of

the yards, (R. p. 133), nor do we deny that in March, 1943,

when the War was at its height, and when this defendant,

like all the other railroads of the country, was pressed with

traffic to the limit of its capacity, and when it was not only

enjoying, but suffering, a business that taxed its every

resource, the north yard of this terminal was very busy, and

many persons unquestionably passed back and forth across

the five tracks which separated this Yard Office in the north

yard from the street of the town of South Rocky Mount.

But we do most vigorously controvert the implication that

work throughout this terminal primarily was engaged in

at this particular point; that in classifying approximately

1,500 cars a day in the north yard, each of them necessarily

passed in front of this Yard Office; that each of the 135

trains which came into and left the terminal during the

course of 24 hours was focused on this point. No witness so

stated and no such implication can be drawn from the evi-

dence as a whole. If each of the 135 trains which came in

and departed from the terminal in a 24 hour period ran the

whole length of it, each of those trains obstructed this walk-

way no more than it would have obstructed a walkway lead-

ing from the street of Rocky Mount across the main line at

any point in the yard, whether a quarter of a mile to the

north or two miles to the south. No witness testified that

all classification in the north yard took place by working the

ladder tracks from the north end. The evidence simply shows

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that approximately 1,500 cars were classified a day in the

north yard and the plat shows that the ladder tracks are

so built that it may be worked from either end.

The fact of the matter is that approximately 135 trains

a day were coming into and leaving these yards and approxi-

mately 4,000 cars a day were being classified therein, and

those facts in themselves conclusively prove that these

tracks, running adjacent to the street of the town and being

the through tracks running through the whole terminal,

were busy during the whole day.

When the plaintiff had left his engine in the hostlers yard,

he says (Petitioner’s brief p. 9) that he had three additional

duties which are stated so as to indicate that they were

required to be immediately performed. His own testimony

either controverts the existence of the duty or the implica-

tion that it was to be performed immediately.

It is first said that he was required to report to his con-

ductor the time that he left his engine, and elsewhere (p. 36)

an instruction given to conductors to report “as quickly as

possible after completion of a trip” the time of each member

of the crew, is referred to, apparently as indicating that it

was the duty of the plaintiff immediately to find his con-

ductor and report. Perhaps that inference might be drawn

from this instruction given to conductors (and the plaintiff

was not a conductor), but for the fact that the plaintiff

himself positively testifies that under the practice which was

followed and which was well known to him, there was no

duty immediately to report.

On the date in question the plaintiff had worked with

Conductor Sargent with whom he had previously worked

many times (R. p. 21). The plaintiff himself testifies that

sometimes after leaving the engine on the hostler track he

would see Mr. Sargent at the Yard Office 2nd make the time

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report to him there; sometimes he would see him on the west

side of South Main Street and then make report ; sometimes

he would see him later on in Rocky Mount and make report ;

and sometimes he would make the report to Mr. Sargent

when he reported some hours later for his trip back north;

and further that this was in no wise different from the

places and times when he would report to other conductors

under whom he might be working (R. pp. 26, 27). The

plaintiff's testimony is completely corroborated by Mr.

Sargent, who says that about half the time he received the

plaintiff’s report in the Yard Office or on the street cpposite

the Yard Office shortly after plaintiff had ceased work, and

about half the time he received it later in the day if they

happened to meet in Rocky Mount or when they reported

back for duty in connection with their northern run (R. p.

19).

In the petition the plaintiff states that on knocking off

work he was required to see that his name and address was

properly entered on the register kept for that purpose. His

testimony does not sustain him. He testified that sometimes

he would look at the register to see whether his conductor

had entered him thereon, and sometimes when he reported

some hours later for his return trip, he would look at the

register (R. p. 72). This is in perfect keeping with the

testimony of the yardmaster who said there was no duty on

the brakeman to make any entry on the register, but that he

did have the right so to do if he so desired (R. p. 87); and

again that a brakeman is not required to sign the register

when he completes his run, but that it is a duty of the con-

ductor to register the whole crew (R. p. 88).

Plaintiff says that it was contemplated he would wash

up and change his clothes before going on the public streets

or to his rooming place, and that this was customarily done

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by the plaintiff and other trainmen in the washroom near the

Yard Office in the north yard. The best answer to this

statement is found on page 68 of the record, the very page

to which plaintiff refers in his petition.

“Q Does the railroad company provide a wash room and

facilities there next to this C O office for this brake-

man to wash up in?

A They do.

Q Isn't it customary and part of his normal course to

go there and wash up after he finishes one of these

runs?

A It depends. Some of them do and some of them

don’t. Some of them go down to the YMCA and

wash up.

Q Certainly they have the privilege of going there and

using those facilities.

A Yes.”

And if other answer be needed, we take the plaintiff’s own

testimony that on the day in question, having left his engine,

he was free to wash at the company’s wash room, or at the

YMCA, or at his room in Rocky Mount, or to do anything

else he wished to do. (R. p. 27).

On the day in question the plaintiff came by the Yard

Office and did not see his conductor. He went across the

street and did not see his conductor. Then, and still being

free to do anything he wished to do, he decided to re-cross

the tracks to wash up. Here again we get a startling factual

mis-statement in the petition and one for which there is no

justification whatsoever. It is said “his purpose in returning

was to wash up and change his dirty clothing, to check the

register and to report to his conductor should he meet him

on the return trip, in the C O office, or the wash room.”

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12

Only the plaintiff knows his purpose and he makes it per- |

fectly clear that his purpose was solely to wash up, and that

the alleged purpose to check the register and to continue to

look for the conductor is simply the imagination of his

counsel.

On direct examination he stated as the sole purpose of his

return ‘“‘to wash my face and hands and pull off those outer

garments which were very dirty”; and again “I did not see

my conductor on this particular day to give him my time, so

I turned around and started back to the C O office which is

right here, and this wash room.” (R. p. 73). On cross

examination (R. p. 27) he makes it perfectly clear that his

sole purpose was to go to the wash room, and in response

to a request for admission he stated that having failed to find

Mr. Sargent on the street he went directly toward a wash

room for the purpose of cleaning up (R. p. 15). He gave no

other testimony on this subject, unless perchance his testi-

mony found at the bottom of pages 71 and 72 of the record

in which he is speaking not of his purpose on this particular

day, but of his general custom, be evidence of his purpose on

this particular day, and if it be such evidence, it simply

substantiates that his purpose was to wash up.

On his return he found, as was not at all unusual, his

way blocked by a cut of cars moving north on the track im-

mediately adjacent to the Yard Office. He was aware that the

very first statement in the rule book is “Safety is of first

importance in the discharge of duty.’”’ And he had many

times according to his own testimony been instructed that

safety was the first and primary rule to be observed (Re-

porter’s Transcript, p. 122). He must have been aware,

having exhibited the knowledge of the rules that he did

exhibit, and if he was not aware he was charged with know]l-

edge of another rule, namely: “The company does not wish

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13

nor expect its employees to incur any risk whatever from

which, by the exercise of their own judgment and personal

care, they can protect themselves, but enjoins them to take

time in all cases to do their duty in safety, whether they may

at the time be acting under orders of their superior or other-

wise.” (Reporter’s Transcript, p. 266).

“Occasionally” (R. pp. 53, 55, 59,63, 103) a man who finds

his way blocked by a moving cut of cars will try to climb

through or over them despite the clear danger of doing so.

When the yardmaster has seen a man do sucha thing he has

immediately cautioned him against it (R. p. 31). On this

particular occasion the plaintiff was not the only man whose

way was blocked. Other men were also standing there. They

waited, but the plaintiff in his impatience tried to cross over

or through the cars. Reckless as this action would have been

under any circumstances, it was doubly reckless on this

particular occasion because of a fact which is nowhere men-

tioned in the petition. The plaintiff's hands were not free.

He himself says that he was carrying a paper lunch bag and

his lantern (R. p. 25). Thus encumbered, he swung up on

the side of the gondola car, eased himself around the corner

of it so as to get his foot on a little step that ran across the

end, and while attempting to step across to an ad joining flat

car (a car which, of course, had on it nothing to which the

plaintiff could hold), he fell. He says that something held

his leg fast (R. p. 74). He was asked what caught his leg

and he did not know. He was asked what there was to catch

it, and he replied he saw nothing unusual on the car. only

the mechanism of the hinges and the brake (R. p. 28).

An eyewitness, however, who was standing beside him.

and who was waiting for the way to become clear. says that

as it appeared to him, plaintiff’s heel had caught in his own

overall or pants leg (R. p. 109). The plaintiff says that the

onsite eaten

14

gondola car on which he climbed was, he thinks, a Pennsyl-

vania car. It was, however, unquestionably a NYC car

because within a very short period the whole cut of cars was

checked and in the whole cut there was only one gondola car

adjacent to a flat car (Reporter’s transcript p. 85). The

number of those two cars was taken and turned over to the

chief car inspector (Reporter’s transcript p. 170). The gon-

dola car was a NYC car and the flat car was a Pennsyl-

vania car (Reporter’s transcript p. 229). The inspectors

could find no defects.

3. The Issue of Negligence.

The District Court found that there was sufficient evi-

dence to take the issue of negligence to the jury because a

man would occasionally do the reckless thing that plaintiff

did, and in the opinion of the District Court the jury might

have believed that a failure to put an absolute stop to this

kind of thing constituted negligence. This is not incorporated

within any one of the three general classifications in which

the plaintiff in his brief says is to be found the negligence

charged. It is stated (brief p. 12) that the defendant was

negligent with respect to the walkway, with respect to the

condition of the brake step, and with respect to the condi-

tions under which the plaintiff was to make his time report.

There can be no question that the decision of Tiller v.

A.C.L., 318 U. S. 54, and the cases which immediately fol-

lowed, have caused considerable doubt in the minds of a

number of judges whether or not it is still necessary in a

case arising under the Federal Employers Liability Act that

there be proof of defendant’s negligence and proof of the

causal connection between that negligence and the injury

sustained. See Griswold v. Gardner, 155 F. 2d 333: Trust

Company of Chicago v. Erie R. Co., 165 F. 2d 806 (cert.

15

den. 334 U.S. 845). Of this fact this court has taken notice

in Wilkerson v. McCarthy, 336 U.S. 53.

Indeed an example of the confusion is to be found in the

opinion of the District Court in this case, wherein it is held

that there need be no evidence upon which causal connection

may be based; but that if there be evidence of negligence

only, the case is to go to the jury who then become “the

sole judges of whether it is reasonably possible to infer a

causal relationship between the act of negligence and the

injury”.

We think, however, it is now far too late to urge that

there is any feature of insurance in the Federal Employers

Liability Act. It is a “liability” act, and one cannot recover

under it unless there be proof of negligence of the defendant,

and unless there be evidence of causal connection between

that and the injury. Tiller v. A.C.L., supra, Wilkerson v.

McCarthy, supra, Brady v. So. R. Co., 320 U.S. 476. Indeed

in Tennant v. Peoria, 321 U.S. 29, the case cited in the

District Court’s opinion, it is said:

“Petitioner was required to present probative facts

from which the negligence and causal relation could

reasonably be inferred.”

Speculation is not an adequate substitute for proof. Moore

v. C. & O. R. Co., decided by this court on February 26,

1951; Tennant v. Peoria, supra.

Now the first general classification into which the peti-

tioner says the negligence charged against the defendant

falls is with respect to the walkway leading from the street

to the Yard Office. He says that the location of this walkway

unnecessarily exposed emplovees to extra hazard: that it

should have been moved further to the north (Petition p. 16-

17, 25), and that there is no evidence that a change of the

16

location to the north “would not have eliminated the hazard”.

It is first to be remarked that the burden of proof rested

upon petitioner. There is here a pertinent failure of evidence.

But that failure is not what the petitioner says. It is the

failure of petitioner to prove, or to introduce evidence tend-

ing to prove, that such a shift of the location of the walkway

would have eliminated that hazard. Even, however, if the

burden were on defendant to show that a shift of the walk-

way would not have eliminated the hazard (a burden which

does not exist), this evidence so shows.

We refer to plaintiff’s own Exhibit No. 9, the large plat

of the yards which will be a to each member of the

court with this brief.

It is only natural that people approaching the Yard Office

from the west, will come directly across the tracks to it and

this will be the case whether or not a paved walkway is or is

not laid. Certainly there is no negligence in giving a pedes-

trian a smooth passageway over tracks at a point which will

lead directly to an office. It is perfectly clear that the location

of the walkway and the location of the Yard Office are

inseparably connected.

The plat is on a scale of one inch to a hundred feet. A

mere glance at it and the manner in which tracks run off to

the east of it and north of the Yard Office show that it would

be possible to move that office only a relatively few feet to

the north unless tracks were going to be obstructed. If the

building were moved as much as 100’, tracks would be

blocked, and unless a large number of other buildings were

to be moved and tracks relocated, the Yard Office could not

be moved so much as 600’ to the north.

The location of physical facilities within a vard are engi-

neering questions of which this court has said in Del. R. Co.

v. Koske,279 U.S.7,11:

17

“Defendant was not bound to maintain its yard in the

best and most efficient condition; it had much freedom

in the selection of methods to drain its yard and in the

choice of facilities and places for the use of its em-

ployees. Courts will not prescribe standards in respect

of such matters, or leave engineering questions, such as

are involved in the construction and maintenance of

railroad yards and the drainage systems therein, to the

uncertain and varying judgment of juries.” (Italics

supplied )

Sufficient as is the answer just given, there is an equally

complete answer in this particular case. There were seventy

cars in the cut of cars being moved. That cut was at least

2,800 feet long. Suppose the walkway had been 200, 300,

500, or 700 feet north of the point where it was located, and

suppose the railroad had expected people coming to the Yard

Office from the west to cross the tracks, say, north of the

Yard Office and then wander down through the vards to

the Yard Office. The plaintiff would have still found his

way blocked. Every train coming into the yards or leaving

the yards would have blocked his way. Many shifting move-

ments would have blocked that way. It is perfectly possible

that some movement which would block the walkway as it is

located, would not have blocked the walkway if located else-

where, but in like manner some movement which would have

blocked it if located elsewhere, would not have blocked it

where it is located. And had the suggestion of the plaintiff

been adopted, and had the walkway been located 400 or 500

feet further to the north, then plaintiff would still have found

his way blocked by the very movement which did block him.

Could it then be said that had he attempted to craw] through

the cars at that point, his negligence would have been the

sole cause of his injuries, whereas under the exact facts of

this case his negligence is not the sole cause of his injuries?

18

The petitioner states that perhaps a fence should have

been constructed along the “right of way where it abuts the

street”. Suppose the defendant had fenced the whole three

miles along the western limits of the yard. Gates would still

have had to be installed and persons coming into the yard

from the west would still have had to cross these tracks.

Petitioner says that a rule should have been promulgated

forbidding employees to cross cuts of cars which blocked

their passageway. In answer it is submitted that it is not

only impossible, but it would be useless, to attempt to cata-

log every known foolishly dangerous action that a railroad

employee might take, and specifically by rule to instruct him

not to take it.

This defendant has stressed safety up to the hilt, and has,

as heretofore shown, instructed its employees to incur no

risk whatsoever from which by their own judgment and

care they can protect themselves, whether or not they be

acting under orders of a superior or otherwise. It is not

necessary by instructions to give to men information which

they already have, and no responsible human being can for

one instant doubt that it is always dangerous to mount

upon or dismount from a moving object. and particularly so

when the hands are encumbered, and even more so when

there is nothing to which the person can hold.

Wiggins v. S.A.L. Ry. Co., 154 N. C. 577, 70 S.E. 932 is

very much in point. There a brakeman had been employed

only one day by the Seaboard Air Line Railway, but he had

had some experience on railroads. He attempted to board a

moving cut of cars by trying to get on a coal car which

had only one step and a straight hand hold at the end of the

car. He fell and was injured. He rested his case upon the

allegation that he was an inexperienced hand and that he

was not instructed as to the manner of vetting on a moving

BM

POA

sins Ainge

™ i. Pinte

19

train. The court pointed out that he could have easily and

safely boarded the caboose and it said:

“We fail to see any instructions that would have given

him information he did not have.”’

Another case fairly close to the instant case is Vilsock v.

N. Y. & O. Coal Co., 256 Pa. 90, 100 Atl. 530. There a

brakeman mounted upon the side of a moving motor to ride

thereon by standing upon the brake rod, as he said he had

seen other people do. He had to go to a siding switch to

which he “‘could easily have walked.’’ The Supreme Court

of Pennsylvania reversed judgment in his favor, saying:

“Plaintiff unnecessarily put himself in a position which

he knew to be dangerous. The evidence clearly shows

that he brought his misfortune upon himself by his

reckless disregard of his own safety in mounting the

moving motor at the side, and in attempting to ride

thereon while it was operating under conditions with

which the record shows he was entirely familiar.”

In \Valler v. Northern Pac. Terminal Co. (Ore. 1946), 166

P. 2d 488 (cert. den. 329 U.S. 742), the court relying upon

Brady v. So. R. Co., supra, very pertinently said:

“Failure to guard against a bare possibility of accident

is not actionable negligence.”

Wolfe v. Henwood, 162 F. 2d 990 (cert. den. 332 U.S.

733), is likewise somewhat in point. There a laborer had

been bailing an accumulation of fuel oil and water from a

catch basin. His gloves and clothing became more or less

saturated with fuel oil. He then procured waste material

and gasoline from a tool house in which no washing facili-

20

ties were available, though they were available at a station

or at a roundhouse some 200 to 500 feet distant. Using this

waste soaked with gasoline he sought to remove this oil from

his clothing as did the other men. He then “voluntarily and

without being ordered to do so but with the idea of pro-

tecting the tool house from possible fire” sought to burn the

waste by putting it on the ground, removing the glove from

his right hand, and striking a match. The glove on the left

hand caught fire and from this the rest of his clothing

caught.

Negligence was charged for failure to furnish a pump to

clean the basin; for failure to furnish protective clothing;

and for failure to supply facilities for cleaning up and dis-

posing of waste.

As to the pump, the Court found that it would have been

sound practice to remove the fuel oil and water by pump

rather than manually, but it held:

“Defendant had a choice of methods, neither of which

was inherently dangerous and cannot be charged with

lack of due care in the choice made.”

The Court brushed aside the allegation as to the clothing

and as to the washing facilities. It said of the allegation of

negligence for failure to supply facilities for disposing of

waste as follows:

“In burning the waste Wolfe acted on his own initia-

tive. He adopted this method of disposal at a time

when it was an extremely dangerous one because of

the condition of his clothing. In the circumstances,

defendant cannot be convicted of negligence for al-

leged failure to furnish a safer method. /t was not the

method that was unsafe, rather it was the time and

manner of its use.” (Italics supplied )

21

This language is directly pertinent to our case. The plain-

tiff in attemping to cross the moving cut of cars acted on

his own initiative and in violation of safety regulations. He

adopted this method when it was particularly dangerous to

do so because he had his hands encumbered. It was not the

means of passage that was dangerous, it was rather the man-

ner in which the plaintiff attempted to make use thereof.

It is also charged in the petition that perhaps the defend-

ant should have constructed an overhead footpath and again

it is charged that the defendant did not introduce evidence

to show that such a bridge would not have been reasonable

under the circumstances. Here again the petitioner over-

looks the fact that the burden of proof rests on him.

It is always possible after an accident has occurred to

suggest certain means which had they been adopted would

have prevented the accident. This defendant had a choice of

a number of means or methods, no one of which would be an

inherently dangerous one, but in the use of any of which

a person might possibly be injured. Here, however, in look-

ing back upon the accident, what is it that most reasonably

would have prevented the accident? The answer seems to be

perfectly clear. Had the defendant done as other men at this

time and place were doing, had he waited for the walkway to

become clear, he would not have been injured.

We feel that we need give very little attention to the

charge of negligence with respect to the condition of the

brake step. In the first place there is not a scintilla of evi-

dence of any defect therein. The whole contention rests upon

the statement of plaintiff that something held his pants leg.

He does not know what. Of necessity there is a brake mech-

arism on the end of the car. Pictures of the car are amid

the exhibits. Suppose he did catch his foot or his trousers in

that mechanism. Possibly that might have been due to some

22

defect therein. Possibly there was no defect. But even if

speculation were permissible we do not need to speculate.

The only evidence in the case that throws light on what it

was that caught his foot or the pants leg of the defendant is

the evidence of the witness, Duke, who says: “His heel or

some part had caught in his overalls leg or his pants leg.”

(R. p. 109), and again: “It appeared that his heel was

caught in his own trousers.” (R. p. 110).

Finally it is charged that there was negligence with respect

to the conditions under which the plaintiff was required to

make his time report. The answer to this can be safely rested

on the testimony of the plaintiff himself. He knew that there

was no duty on him to register the time that he “knocked

off’. He knew that the conductor registered for the crew.

He knew that the same crew which had come south from

Richmond to Rocky Mount would some hours later take a

train back north from Rocky Mount to Richmond. He knew

that it made no difference when he made the report to the

conductor so long as that report was made prior to the

time the crew left for its return to the north. He knew that

the crew reported for that return trip a half hour before

leaving. He knew that about half the time he would happen

to see his conductor around the Yard Office or on the street

across the tracks therefrom immediately after he knocked

off work and that he would then give his time to the con-

ductor. He knew that in the other half of the time he would

happen to see the conductor later on on the streets of the

town, or he would not see him until he reported for the run

back north, and that then he would make report. He knew

that by custom and practice, not only with this conductor but

with other conductors, this informal method of making the

report was perfectly acceptable. This general custom and

practice, and in particular the plaintiff’s knowledge and

=.)

ee

23

compliance with it, is in every respect equal to a formally

promulgated rule that at his convenience he might make his

report in this manner. And this custom was sensible. Had the

conductor been instructed to wait in the Yard Office to

receive this report, all he would have been doing would be

idly waiting until the crew on the engine might have com-

pleted their duties (whether delayed or not delayed) and

reach the Yard Office. For one member of that crew a

convenient exit from the yard may have been by way of the

Yard Office, for another member it may have been by an-

other route. It was neither necessary nor reasonable that a

specific time and place be designated, when by optional and

convenient means, and without any inconvenience to anyone,

the necessary report could be obtained.

4. Causal Connection.

Certainly this defendant does not question the soundness

of the broad principles quoted from the Restatement of the

Law of Torts on pages 38 and 39 of the petition. Certainly

if it had been negligent, and its negligent conduct was a

“substantial” factor in bringing about the harm, or if it had

been negligent and the plaintiff’s act was ‘“‘a normal response

to the stimulus of a situation created by” that negligence,

the necessary causal connection would exist.

This defendant built a walkway across five tracks (10

rails) leading directly from the Yard Office to the street.

The yardmaster gave as his reason for building this walk-

way a desire to keep people from having to walk through

the mud. Since people will naturally and normally use the

shortest route from a street to an office in a railroad yard, it

might well have been negligence on the part of the defendant

if someone had tripped over ties or rails and been injured.

In other words the walkway was put there for the con-

24

venience and safety of people who had business at the Yard

Office and who were approaching it from the west. Anyone

using the walkway might with perfect correctness say that

his action was ‘“‘a normal response to the stimulus” of the

fact that a walkway there existed. But it was not the use

of the walkway that caused injury to the defendant. It was

his failure properly to use it. It was his abandonment of the

walkway that caused his injuries. Had he used the walkway

for the purpose for which it was built, namely, to walk upon

it, he would not have been injured. If we should engage in

speculation and should speculate upon the question whether

there was a defect in the gondola car, it would not be that

defect that caused these injuries. That car, as the plaintiff

well knew, was not there to be used by him as a substitute

for a walkway.

Looked at from any point of view no one of the assumed

acts of negligence can have any real causal connection with

the injuries. If ever there was a clearly independent, inter-

vening cause, it is here and is to be found in the impatient

recklessness of plaintiff.

In closing this last point and in closing this brief, we are

subject to the criticism of repetition, but the facts here speak

so loudly that we repeat them. An experienced railway em-

ployee acting under no compulsion whatsoever, who labored

under no personal need to hurry and immediately arrive at

the point to which he was going, found his passageway

through the yards of a large railway terminal blocked by

an ordinary movement—a movement of a kind which at

some point in these yards is taking place at almost every

moment during the twenty-four hours. He may have had to

wait two, five, possibly ten minutes. If he did not care to

wait in order safely to reach the company’s wash room, he

could easily have turned around and gone to the Y.M.C.A..,

25

his own room, or some other wash room. Being perfectly

aware of the situation he elects not to wait but to attempt

to climb through or over this moving cut of cars. Although

encumbered with two objects he mounts the side of a gondola

car, eases himself around to the end of it where he has only

narrow footing and tries to step across the opening between

that and an adjoining flat car, on which of course there is

nothing to which he can hold. He falls and he is injured.

Respectfully submitted,

Cotiins DENNY, JR.

DENNY, VALENTINE & DAVENPORT

1200 Travelers Building

Richmond, Virginia

J. M. TowNnsEND

Union Trust Building

Petersburg, Virginia

Counsel for Respondent