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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondents in Opposition
- **Published:** January 1, 1951
- **Citation:** 340 U.S. 952

## Text

Index
Page
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-

SOE MOPS RNIN CAPE ar RIE e CATT CRE ———

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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4

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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7
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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9

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

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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

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sins Ainge
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0550%3A2. Public record. Not legal advice.