Petition for A Writ of Certiorari — Click v. Jacksonville Terminal Co.

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: N 2° 1956

Supreme Court of the Unit States

J BAROLD B. WILEY, Cle

OCTOBER TERM, 1955.

No. 653 |

aceite Hats

C. F. CLICK,

Res ey

Petitioner,

versus

JACKSONVILLE TERMINAL COMPANY, a corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA.

§ “4

a =

& 5

WILL O.

Attorney for Petitioner,

100 Law Exchange Building,

Jacksonville, Florida.

Pe . . _— LAEGER EG BOM ORE LE EPIL PEL I L LE O

ep NY at Binge ed OTE Mica aro Fong? * seals ina .

SUBJECT INDEX

PAGE

I. REFERENCE TO OPINIONS ................ 1

II. CONC:SE STATEMENT JF GROUNDS ON

WHICH JURISDICTION IS INVOKED ..... 3

Ill. THE CERTIFIED RECORD .................. 3

IV. QUESTIONS PRESENTED .................. 5

ae Sn or ere eee 7

We. BLATEeeers OF PACTS . i... 6066 565.0c se. 8

VII. METHOD OF RAISING FEDERAL QUES-

MEET i RAS I eves soko vie ere eel ens 11

Pe I na 54055 6ds sr Naa io ees 13

I £0 brcias bak oo baw ee ee ee 22

ENE. AP ecvevewn A ihaeekisiee ee. 23

1, Deneny Tene i so ee 23

2. Opinion delivered in the Supreme Court of

POE rth S ie eka THREE ECE OL CharT 24

3. Order denying Petition for Rehearing ...... 25

4. Federal Employers’ Liability Act, Title 45 .. 26

yt aes wr NT, LE ORF ERIN BNL REE RED IED AI EL DANTE ie BCP SP AT oR ALE Bi OS en ST ILA OP OR PRT Rt

——

CASES CITED

PAGE

Allbright v. Pennsylvania, 37 A. 2870, certiorari de-

nied 65, S.C. 72; 00 L.Ed. 500 ............... 20

Bailey v. Central Vermont Ry <o., 319 USS. 350, 63

S. Ct. 2608, OT L. Bd. 1467 .................. 17, 18

Bimberg v. Northern Pacific Ry. Co., 14 N. W. 2d

Ne MMO POS Sr aN le. 19

Blair v. Baltimore & Ohio Ry. Co., 65 S. Ct. 545; 89

he whee ala hp ora ga Pe i tg 15, 18

Bly v. Southern Ry. Co., 31 S.E. 2d 564; 183 Va. 162;

SO M6 555 4s SS OREO Cw Pil 2k y. 15

Carpenter v. A. T. & S. F. Ry. Co., 109 C.A. 218; 240

ok, ROSE Ee et Ny Fat Nee eee 20

Crozier v. Charleston W.C. Ry. Co., 71 S.E. 2, 800 . 21

Eglsaer v. Scandrett (CCA 7) 151 F. ee 17

Ellis v. Union Pacific Ry. Co., 91 L. Ed. 572 ....... 18, 20

Flanders v. Georgia S & F Ry. Co., 68 Fla. 479; 67

Rates nue ec oes ota 7 18

Griswold v. Gardner, 155 F. 2d 33.................. 18

Hiller v. Atlantic Coast Line Ry. Co., 63 S. Ct. 444,

ue Se Oe Sn UD ns econ vccccs.. 14

James v. Pennsylvania, 196 F. 2d 1021, 101 F. Sup.

CE eens ie ak dia ichh-9s Lae bie Shido chk vce 14, 21

Jesianowski v. Boston & Maine, 429 U.S. 452 ...... 18

K. C. Southern Ry. Co. v. Chandler, 192 S.W. 2d

NE eta ois a bid vais Vin CaaS one heck Ges. 14, 21

Lavender v. Kurn, 90 L. Ed. 917; 327 U.S. 645 .. 17, 18, 19, 20

Lillie v. Thompson, 173 F. 2d 481; 92 L. Ed. 73 ...... 21

McGuigan v. Southern Pacific, 247 P. 2d 415 ...... 21

Mires v. Redding, 91 L. Ed. 1129 .................. 18

Owen v. Pacific Ry. Co. 319 U. S. 715; 63 S. Ct. 1271 18

Tennant v. Peoria & P. U. Ry. Co., Ill. 1944, 64 S. Ct.

409; 321 U.S. 29; 88 L. Ed. 520............ 14, 15, 18

CASES CITED—(Continued)

PAGE

Tiller v. Atlantic Coast Line Ry. Co., 63 S. Ct. 444:

wae Wee Oe, OT Ts TA GIO. ood. ok ce cccee 15, 18, 19

Urie v. Thompson, 69 S.C. 1018; 93 L. Ed. 1282 . . 14, 20, 21

Vandalie R. Co. v. Kendall, 1918, 119 N.E. 68 Ind.

RN BE RS oak wets KA ch gains d650 ooo nee krke 20

Wolf v. Henwood, 162 F. 2d 998; certiorari denied, 68

eee fe 8 eee 15

STATUTE CITED

Section 51, Title 45, U.S. Code .................. 3, 7, 26

_ —_ TEESE RTS ONES OY STE LNAR DENTS PRA AN APNE OLB PELE MEDS NG SERIE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1955.

No.

C. F. CLICK,

Petitioner,

versus

JACKSONVILLE TERMINAL COMPANY, a corporation,

Respondent.

7"___—

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA.

TO THE HONORABLE, THE CHIEF JUSTICE OF THE

UNITED STATES AND TO THE HONORABLE AS-

SOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

Petitioner, C. F. Click, prays a Writ of Certiorari issue

to review the judgment of the Supreme Court of Florida

in the case of C. F. Click, Appellant, v. Jacksonville

Terminal Company, a corporation, Appellee, Case No.

26,485, lately pending in said Court.

I. REFERENCE TO OPINIONS.

Reference is made to the final judgment of the Circuit

Court of Duval County, Florida, in the case of C. F. Click,

Plaintiff v. Jacksonville Terminal Company, a cor-

poration, defendant, Case No. 22266-L, not officially

reported; a copy of said judgment (Summary Judgment)

and opinion appears in the record at pages 58-59, Volume I,

and is set forth in the appendix of this Petition, page 23.

Reference is further made to official opinion delivered

in the Supreme Court of Florida affirming the judgment

of the Circuit Court of Duval County, Florida, in the case

of C. F. Click, Appellant v. Jacksonville Terminal Com-

pany, a corporation, Appellee, the number appearing above.

The cause has not been officially reported; a copy of the

judgment and opinion appears in the certified record at

page 267 (Vol. III) and is set forth in the appendix of this

Petition, page 24.

Further reference is made to the order of the Supreme

Court of Florida denying petition for rehearing, (Record

pp. 270-271, Vol. III), not officially reported, but copy is

set forth in the appendix of this Petition, page 25. This

was the final judgment.

Bg opm “ere « EOE FMS EAA a

BLO PENSE SILI EE ORO el PT PORE)

Il. CONCISE STATEMENT OF GROUNDS ON WHICH

JURISDICTION IS INVOKED.

Jurisdiction of this Honorable Court is invoked by au-

thority of Title 28, Paragraph 1257 (3) United States Code,

which provides:

“. . .that final judgments rendered by the highest

court of a state in which a decision could be had may

be reviewed by the Supreme Court... . by Writ of

Certiorari, where the validity of a . . . statute of

the United States is drawn in question... .”

The date of the judgment of the Supreme Court of

Florida sought to be reviewed here, and the time of its

entry was September 16th, 1955,

The date of the order denying a rehearing by the Su-

preme Court of Florida and its entry was November 14th,

1955. The statutory provision confering on this Honor-

able Court jurisdiction to review the judgment or decree

in question by Writ of Certiorari is known as the Federal

Employers’ Liability Act (45 U.S.C.A., Sec. 5159) as set

forth in the appendix of this Petition, page 26.

Ill. THE C‘RTIFIED RECORD.

For convenience of the Court. the certified record from

the Supreme Court of Florida is in three volumes.

Volume I.

Volume I (pages 1-66) contains the Complaint, (record

p. 1); the Answer, (record pp. 2-3); Stipulation, (record

p. 3); Motion for Summary Judgment, (record p. 3); the

deposition of Dr. Jack H. Bowen, record pp. 6-29); the

deposition of Ernest Batten Harris, (record pp. 31-46);

affidavits as follows: George F. Hobbs, (record pp. 47-48);

C. H. Toler, (record pp. 48-49); Clarence Suggs, (record

pp. 49-50); C. F. Click, (record pp. 51-54); C. C. Johnson,

(record pp. 54-55); J. H. Bailey, (record pp. 55-56); Marttie

C. Simmons, (record p. 56); and William A. Ferris, (record

p. 57); Summary Judgment, (record pp. 58-59); Notice of

Appeal, (record p. 60); Assignments of Error, (record p.

61); Directions to Clerk for Making Up Transcript of

Record on Appeal, (record p. 62); Certificate of the Clerk,

(record p. 65).

Volume II.

Volume II, (record pp. 67-262), which was known as

the Supplemental Record, contains the record of the form-

er trial, and was simply used by the lower court by

stipulation (record p. 3, Vol. I) as evidence, along with

the affidavits and depositions in Volume I, on the hearing

of defendant’s Motion for Summary Judgment in that

former case. The Circuit Court of Duval County, Florida,

announced its intention to direct a verdict, and the plain-

tiff was forced to take an involuntary non-suit, (record p.

192). This former case was appealed to the Supreme

Court of Florida, but dismissed by that court for failure

of Petitioner to pay the court costs of the *espondent,

a technicality. The costs were paid by the Petitioner, but

She ane a

the appellate court nonetheless dismissed the cause and

Petitioner was never heard in the appellate court in that

case.

It was from the order granting defendant’s Motion for

Summary Judgment entered September 9th, 1954, (record

pp. 58-59), that Petitioner on November 5th, 1954, ap-

pealed to the Supreme Court of Florida, (record p. 60).

Volume III.

Volume III of the certified record contains the judgment

of the Supreme Court of Florida, (record p. 267); the

Petition for a rehearing, (record p. 268); the order deny-

ing the Petiton for rehearing, (record p. 270); and other

appellate documents not pertinent here.

IV. QUESTIONS PRESENTED.

The question presented is whether the Supreme Court

of Florida has decided a Federal question of substance not

heretofore determined by this Honorable Court, and de-

cided it in a way probably not in accord with the ap-

plicable decisions of this Honorable Court in this, to-wit:

Question No. 1: WHERE PLAINTIFF CONTRACTED

AN OCCUPATIONAL DISEASE KNOWN AS DER-

MATITUS FROM A “WEED KILLER” CONSISTING OF

CREOSOTE AND DIESEL OIL, A HIGHLY TOXIC AND

POISONOUS LIQUID, WILFULLY SPRAYED BY DE-

FENDANT ON ITS TRACKS, YARDS, ROADBED AND

menniiaiatiie

PREMISES WHERE PLAINTIFF, DEFENDANT’S EM-

PLOYEE, RAILROADING IN INTERSTATE COM-

MERCE, WAS REQUIRED TO WALK AND WORK, AND

THE PLAINTIFF BECAME PHOTOSENSITIZED,

BURNED, POISONED AND INFECTED THEREBY, RE-

SULTING IN SAID DERMATITUS, AND THE PLAIN-

TIFF BROUGHT AN ACTION AGAINST DEFENDANT

UNDER THE FEDERAL EMPLOYERS’ LIABILITY ACT,

TO WHICH ASSUMPTION OF RISK 1S NO DEFENSE,

AND CONTRIBUTORY NEGLIGENCE IS ONLY A

PARTIAL DEFENSE, DID THE SUPREME COURT OF

FLORIDA PROPERLY APPLY THE APPLICABLE DE-

CISIONS OF THE UNITED STATES SUPREME COURT

UNDER SAID ACT IN AFFIRMING AN ORDER EN-

TERING A SUMMARY JUDGMENT BY THE TRIAL

COURT, WITHOUT SUBMITTING THE QUESTION OF

PROXIMATE CAUSE TO THE JURY?

Answer: The Supreme Court of Florida answered in

the affirmative.

Question No. 2: WHERE DEFENDANT, OPERATING

A RAILROAD IN INTERSTATE COMMERCE, WILFUL-

LY OR NEGLIGENTLY MANUFACTURED AND

SPRAYED ITS PREMISES, TRACKS, YARD AND

ROADBED WITH A “WEED KILLER” WHICH IT

MANUFACTURED, CONSISTING OF CREOSOTE AND

DIESEL OIL, AND WITH WHICH PLAINTIFF-EM-

PLOYEE CAME IN CONTACT, CAUSING PLAINTIFF

TO BE BURNED AND PHOTOSENSITIZED SO THAT

PLAINTIFF WOULD BECOME AFFECTED UPON

SUCH USE BY THE DEFENDANT, AND AFTER NOTICE

—7~—r ne aS aA LF SSBC SS eI Rt B IE EAE A

DEFENDANT KNEW OF THE POISONOUS EFFECT OF

THIS TOXIC LIQUID AND THE DEFENDANT THERE-

AFTER WILFULLY CONTINUED TO SPRAY THE

PREMISES, TRACKS, YARD AND ROADBED WITH

SUCH “WEED KILLER” AFFECTING THE PLAINTIFF

TO THE EXTENT THAT HE CONTRACTED AN OC-

CUPATIONAL DISEASE KNOWN AS DERMATITUS,

AND SUIT WAS BROUGHT UNDER THE FEDERAL

EMPLOYERS’ LIABILITY ACT, WHERE ASSUMPTION

OF RISK IS NO DEFENSE, AND CONTRIBUTORY

NEGLIGENCE IS ONLY A PARTIAL DEFENSE, DID

THE SUPREME COURT OF FLORIDA CORRECTLY

INTERPRET THE FEDERAL EMPLOYERS’ LIABILITY

ACT, WITHOUT DOING VIOLENCE TO PLAINTIFF'S

FEDERAL RIGHTS THEREUNDER, WHEN SAID

COURT ENTERED A “PER CURIAM” DECISION

SUSTAINING A TRIAL COURT IN ENTERING A SUM-

MARY JUDGMENT, WITHOUT A JURY TRIAL

WHERE THE QUESTION OF THE EVIDENCE, CIRCUM-

STANTIAL EVIDENCE AND PROXIMATE CAUSE ARE

FOR THE JURY TO DETERMINE?

Answer: The Supreme Court of Florida answered in

the affirmative.

V. TEXT OF STATUTE.

The pertinent text of the statute because of its length,

is here set forth in the appendix, at page 26, viz: Title

45, U.S.C.A., Secs. 51, 53 and 54.

VI. STATEMENT OF FACTS.

The plaintiff is an employee of the Jacksonville Ter-

minal Company and has been since September 3, 1925,

(record p. 21), and during the months of July and August,

1951, he was employed as a conductor for the Jacksonville

Terminal Company, (record p. 51), and was assigned to

the job of removing or “pulling” cars out of storage tracks

to allow a machine containing a “weed killer” to go in and

spray the tracks, (record p. 51).

The “weed killer” used by the defendant, Jacksonville

Terminal Company, consisted of twenty-five (25°%) per-

cent creosote and seventy-five (75°) percent diesel fuel,

(record p. 37). It was the Chief Engineer, Ernest Batten

Harris, who determined this formula by experiment on

vegetation, (record p. 37), and who determined that the

spray was to be used, (record p. 38). Mr. Harris did not

study chemistry, (record p. 37), but is a civil engineer.

Mr. Harris never made any tests to determine whether

or not the fuel oil and creosote mixture was harmful

to animals or human beings, (record pp. 41-44), nor did

he make any inquiry about it. Mr. Harris, being in charge

of track maintenance, received no instructions about the

“weed killer”; (record page 38), being the head of the

department, he simply requisitioned the creosote and fuel

oil and sprayed all of the area where the tracks are,

(record page 39). The work of actually applying the

“weed killer” was assigned to the witness, Oglesby, and

a colored boy by the name of Collier, (record page 40).

The tracks were sprayed an average of two or three times

a year, (record page 41). Dr. Jack H. Bowen, Jacksonville

fee

te oye

ami

physician specializing in dermatology, first saw the plain-

tiff on April 18th, 1952, (record page 7), and treated him

on weekly intervals through June, and then he had a

lapse of treatment until August 12th, when he had a recur-

rence of the eruption on his knee and thighs, and again

on May 16th, 1952, after an exposure in the area treated

with the creosote and diesel oil, (record page 9). Again

in 1953, he was treated by Dr. Bowen for the condition

practically like he started off, (record page 10). He was

treated by X-ray, radiation therapy, boric acid soaks and

anti-histamine cream and later aveeno compress, (record

pages 10-11). The doctor attributed the condition to ir-

ritation, sensitization to his exposure to creosote and

diesel oil, (record page 12). During the course of time,

Mr. Click became photosensitized as a result of the re-

peated contact with the creosote spray, so that now when

he even gets in the sun he has a flare-up of the pre-exist-

ing eruption, (record pages 18 & 25). His trouble

paralleled the spraying of the railroad yards, (record pages

19 & 25), and because if creosote is on the ground, he

walks around on the ground and gets it on his pants, and it

stays on the skin, the unexposed areas of his skin were

affected, (record page 19). The condition resulted in in-

creased pigmentation of Mr. Click’s skin all over, (record

page 23).

While the plaintiff was assigned to the job of pulling

the cars from the tracks to allow the spray cart operated

by Suggs and Collier to enter the tracks and spray the

weeds, he was required, as such conductor, to be on the

ground in order to supervise the operation of removing

and replacing the cars on these tracks; his duties neces-

= dae

. om

sitated being on the ground and to cross through the

weeus that were freshly sprayed by the creosote “weed

killer’. The creosote “weed killer” was applied to the

tracks known as YB and YC in the coach yard, and was

applied more heavily than in any other place in the de-

fendant’s yard. That the spray cart on entering these

tracks would travel at a very slow rate of speed in order

to apply more weed killer to the weeds there, and would

double spray by backing out of the tracks, since the weed

growth was so heavy on the tracks. Plaintiff had no

choice but to be on the ground and walk through the

freshly sprayed areas in order to carry out his duties as-

signed to him. Plaintiff complained to Yard Master Smith

and requested that he be given other duties and not be re-

quired to be in and about the spray, which the Yard

Master knew was harmful, (record p. 52); that the Yard

Master explained to the plaintiff that the reason he was

having plaintiff do the job and paying him overtime for

doing it was that plaintiff would do it two or three times

faster than the other crew, and he wanted the job done

right away so that the tracks would be ready for the trains

when they came in the yard. Plaintiff says that on this

occasion when he received the worst burn from the

creosote “weed killer”, that he had been burned on

previous occasions and on many occasions when he was

required to be in and about the areas where there were

concentrations of the creosote “weed killer” against his

will, but at the instruction of his employer. Plaintiff com-

plained to every one of ihe yard masters in 1951, (record

p. 120, Vol. II), and showed them what had happened to

him; pulled his breeches down and showed where it was

on the back of his legs and there was blood on them, and

told the yard master he was going to have to give up—he

couldn’t make it. (record p. 119, Vol. II). Plaintiff was

injured from the spray in 1953. The spray was applied

two or three times a year since 1950, (record p. 41).

Vil. METHOD OF RAISING FEDERAL QUESTION.

The Federal question sought to be reviewed was raised

by the Complaint, or pleading (record p. 1, Vol. I) as

follows:

“.. .That at all times hereinafter mentioned the de-

fendant was the owner of a railroad engaged in

the managing and handling of trains and cars trans-

ported in interstate commerce and was possessed of

a yard and tracks, including engines and cars and

other equipment for the purpose of transporting same

in interstate commerce. This Court has jurisdiction

herein, arising under the Federal Employers’ Liability

Act as Amended in 1939. . .”

Also the question of the Federal Employers’ Liability

Act was raised and admitted by counsel for the defendant

in the evidence, (record p. 16, Vol. II) as follows:

“. . .Q. Now, is the Terminal Company here in

Jacksonville a company which handles cars in inter-

state commerce?

A. Yes, sir.

Q. That’s passenger and freight, or both or—

A. Just passengers—There is a question about

whether the Jacksonville Terminal actually handles

in interstate commerce. I would like to retract that.

We handle cars coming in over other railroads.

bao i

Bee. eR OTE Re en gfe RS ERM SRI egg TRE SES EEE LS aE tee eS

Q. They take them and get them ready to send them

out they are sent from the Terminal Company across

state lines?

A. Turn them over to the connecting lines.

Q. I understand that there is no dispute about that,

Mr. Bailey. I am not trying to mix you up. There

is no question of the law for the Terminal Company.

You are in interstate commerce?

A. Yes, sir.

MR. ADAMS: The defendant admits the Jackson-

ville Terminal Company is engaged in interstate

commerce. We object to the question as calling for

a legal conclusion.

;

THE COURT: Well, you have admitted what he

wanted, so let’s proceed. . .”

And in Volume II of the record, at page 22:

“| Is the Company engaged in interstate com-

merce, that is, transporting trains to other lines that

take them to other states?

A. Yes, sir.

MR. ADAMS: May the Court please, we have

admitted that the company is engaged in interstate

commerce.

THE COURT: I think that is sufficient, too.

MR. MURRELL: I won’t pursue it any further. I

just wanted to make sure the Federal ico

Liability Act implies. (1. Rep. CRROR; shewld ReAd “Aff

THE COURT: Well, they have admitted it, so

let’s go ahead. . .”

Also the Federal question was raised by the following

Assignments of Error (record p. 61):

“1, The Court erred in granting defendant’s motion

for summary judgment.

2. The Court erred in entering the summary judg-

ment herein.

3. The Court erred in refusing to submit the case

to a jury...

6. The Court erred in finding that there was no

genuine issue as to any material fact, and that the

defendant was entitled to judgment as a matter of

law...”

thereby fully raising a Federal question before both lower

courts.

Vill. ARGUMENT.

The essential elements of the case therefore, were

whether or not there were any probative facts from which

wilfulness or negligence of the railroad and the causal

relation could reasonably be inferred.

In cases involving the Federal Employers’ Liability Act,

the negligence of the employer is based on negligence (or

wilfullness) where an injury is sustained by an employee

and, incidentally, the failure to furnish a safe place to

work, the 1939 amendment barring assumption of risk as

a defense and contributory negligence as a total defense,

has been said by the Supreme Court of the United States

" ee ee

SELLE ORL ONE Dim POPE PI PSO IM ELIE NI COCR TT Oe 4 ’

as having stricken ever, vestige of the right of these de-

fenses under the act.

Did the defendant here do a wilfull or negligent act

which imposed liability on the defendant under the act?

For if it did, as we contend it did, there were present

probative facts from which the wilfullness or negligence

and the causal relation could reasonably be inferred. It

was certainly a question of fact for the jury to determine,

and the entering of the summary judgment did violence

to the plaintiff’s rights under the act.

Occupational disease in recent years has been established

more firmly as a result of negligence or wilfullness, and

there are some cases holding recovery proper under the

Federal Employers’ Liability Act. See Urie v. Thompson,

69 S.C. 1018, 93 L. Ed. 1282, and James v. Pennsylvania,

196 F. 2d 1021, 101 F. Sup. 241. Also see Kansas City Sou.

Ry. v. Chandler, Texas Civil Court of Appeals, 192 S.W.

2d 304.

In the case of Tennant v. Peoria & P. U. Ry. Co., Il.

1944, 64 S. Ct. 405, 321 U.S. 29, 88 L. Ed. 520, and the

case of Hiller v. Atlantic Coast Line Ry. Co., 63 S. Ct.

444, 318 U.S. 54, 87 L. Ed. 610, the Supreme Court of the

United States said:

“. . .In view of the 1939 amendment to section 54

of this chapter abolishing assumption of risk doc-

trine, no case is to be withdrawn from a jury on

any theory of assumption of risk, and questions of

negligence should under proper charge from court

be submitted to jury for their determination.”

eer OO LN DSRT EPA aon

The duty which is imposed on an employer under the

Federal Employers’ Liability Act is (1) absolute, (2) non-

delegable, and (3) extends to each and every employee.

This duty has been decided by our state court and ap-

proved by the Supreme Court of the United States so

frequently that we need only refer to the following cases,

viz: Tennant v. Peoria & P. U. Ry. Co., supra; Tiller v. At-

lantic Coast Line Ry. Co., supra; Bly v. Sou. Ry. Co., 31

S.E. 2d 564, 183 Va. 162, 172 A. L. R. 584; Blair v. Balti-

more & Ohio Ry. Co., 65 S. Ct. 545, 89 L. Ed. 490;

and Wolf v. Henwood, 162 F. 2d 998, certiorari denied, 68

S. Ct. 88, 92 L. Ed. 357.

Since there can be no question but that the duty was

owed by the defendant here to the plaintiff the problem

devolves into two parts: (1) Whether or not the defendant

fulfilled its duty and obligation to the plaintiff, and (2)

If the duty were breached, was this a proximate or con-

tributing cause of the plaintiff’s injury or disease.

The question of whether or not there was a want of

due care in all the circumstances, in whole or in part,

under the Federal Employers’ Liability Act, was a ques-

tion of fact for the jury to determine. See Tennant v.

Peoria & P. U. Ry., supra, and Tiller v. Atlantic Coast

Line Ry. Co., supra. In the light of the foregoing, let us

consider the facts in this case.

Mr. Click was an employee of the defendant. The de-

fendant knew Mr. Click was required to work in and

around the spray car and the tracks which had been

sprayed by the “weed killer”. They directed him to work

there. The defendant knew plaintiff's occupation required

him to be around the “weed killer” and that it was in-

jurious to him because he had complained to them about

it; only to be directed to return to the vicinity where the

“weed killer” was sprayed, and defendant persisted in re-

applying the “weed killer” to the area where plaintiff

was required to work. The defendant exercised no care

at all with reference to the plaintiff; in fact, it wilfully dis-

regarded his complaints and requests that he be relieved

from duty where defendant knew it had created the

toxic condition. While it is impossible to determine any

particular standard for measuring due care of a defend-

ant under such circumstances, we think the conduct of the

defendant manifestly shows the breach of that duty im-

posed on it by the Federal Employers’ Liability Act, and

that no care whatever was exercised with respect to the

plaintiff.

The negligence of the defendant might consist of one or

more of the following: (1) Failure to determine whether

or not the mixture of creosote and diesel oil was harm-

ful to the plaintiff; (2) The defendant’s wilfull or negli-

gent disregard of the plaintiff's repeated complaints re-

questing that he be relieved from duty in the sprayed

area; (3) The failure of the defendant to see that the

plaintiff be not endangered by the toxic or poisonous

liquids applied by it to its premises; (4) The repeated ap-

plication by the defendant of the “weed killer” after the

plaintiff had requested that the condition be removed or

alleviated; (5) In ordering plaintiff to return to work in

the sprayed <rea by defendant’s foreman.

Under the Federal Employers’ Liability Act, the rights

which the act create are Federal rights protected by

Federal law, rather than by local law. (319 U.S. 52.)

It is appropriate to consider the function of the jury

in these Federal Employers’ Liability Act cases as defined

by the Federal Court in Bailey v. Central Vermont, 63

S. Ct. 1062, 87 L. Ed. 1444, where the Court said:

TS hy AEN 2 ede RE

“| ‘The right to trial by jury is a ‘basic and fun-

damental feature of our system of Federal juris-

prudence’ Jacob v. New York City, 315 U.S. 742.

It is part and parcel of the remedy afforded rail-

road workers under the Federal Employers’ Liability

Act. Reasonable care and cause and effect are as

elusive here as in other fields. But the jury has been

chosen as the appropriate tribunal to apply those

standards to the facts of these personal injuries. . .

To deprive these workers of the benefit of a jury trial

in close or doubtful cases is to take away a

goodly portion of the relief which Congress has af-

forded them.”

“The words ‘in part’ have enlarged the field or scope

of proximate causes—in these railroad injury cases.

These words suggest that there may be a plurality

of causes, each of which is sufficient to permit a

jury to assess a liability.”

Eglsaer v. Scandrett, (CCA 7) 151 F. 2d 562.

“The fact that a jury’s verdict involves speculation

and conjecture does not make it objectionable, so

long as it has basis in the evidence, the jury being

free to discard or disbelieve whatever facts are in-

consistent with its conclusion.”

Lavender v. Kurn, 90 L. Ed. 917, 327 U.S. 645.

The Supreme Court of Florida once said:

“ The act of Congress giving this right of action

not existing at common law is paramount substantive

law creating a new right and limiting in express

terms its use and purposes. Such legislation cannot

therefore be regarded as a mere regulation of judicial

procedure. . .”

Flanders v. Georgia S & F Ry. Co., 68 Fla. 479, 67

So. 2d 68.

This Honorable Court, in Griswold v. Gardner, 155 F.2d

33, held that a safe place to work could be made unsafe

by the operation of a train.

A long series of cases in which this Honorable Court

has reversed the lower courts under the Federal Employ-

ers’ Liability Act, are: Tiller v. Atlantic Coast Line Ry.

Co., supra; Owen v. Pacific Ry. Co., 319 U.S. 715, 63 S. cr.

1271; Tennant v. Peoria etc. Ry. Co., supra; Lavender v.

Kurn, 90 L. Ed. 917, 327 U.S. 645; Ellis v. Union Pacific

Ry. Co., 91 L. Ed. 572; Mires v. Redding, 91 L. Ed. 1129;

Jesianowski v. Boston & Maine, 429 U.S. 452; Bailey v.

Central Vermont Ry. Co., 319 U.S. 350, 63 S.Ct. 1062; 87

L. Ed. 1444; and Blair v. O. R. Baltimore Ry. Co., 65 S.

Ct. 545, 89 L. Ed. 490. The lower court rulings in the

above cases were held to be erroneous and this Court said:

“ We hold that every vestige of the doctrine of

assumption of risk was obliterated from the law by

the 1939 amendment, and that Congress, by abolish-

ing the defense of assumption of risk in that statute,

did not mean to leave open the identical defense

for the master by changing its name to ‘non-negli-

gence’... .”

ae Me ee, =

The case of Lavender v. Kurn, supra, one of the latest

cases of this Honorable Court under the Federal Employ-

ers’ Liability Act, leaves little room for doubt but that a

directed verdict by a trial court or a holding of any court

sustaining a directed verdict will not receive favor, al-

though the verdict involves speculation and conjecture.

In the Tiller case, supra, Justice Black said:

“. . .It was this maze of law which Congress swept

into discard with the adoption of the 1939 amend-

ment to the Employers’ Liability Act, releasing the

employees from the burden of assumption of risk

by whatever name it was called. The result is an

Act which requires cases tried under the Federal Act

to be handled as though no doctrine of assumption of

risk had ever existed. . .”

It was the continuing duty of the employer to furnish

plaintiff with a safe place to work, regardless of in-

frequency of use of such place and such duty increased

with the risk, as in Bimberg v. Northern Pac. Ry. Co.,

14 N. W. 2d 410, 217 Minn. 187.

A careful study of the Tiller & Atlantic Coast Line,

supra, and cases subsequently decided by this Honorable

Court, establishes that matters of negligence and of

proximate cause are for the jury, which may be set aside

only when there is a complete absence of probative facts

to support a conclusion reached. Whenever facts are in

dispute or the evidence is such that fair-minded men may

draw different inferences and a measure of speculation

and conjecture is required on the part of those whose duty

it is to settle the dispute by reaching what seems to be

the most reasonable inferences, the matter was held to be

—_—

ae ce in Seem ee A A EE VERS as PESO

for the jury and not to be disturbed by an appellate court,

which might draw a contrary inference or feel another

conclusion might be more reasonable. Ellis v. Union

Pacific Ry. Co., supra, and Lavender v. Kurn, supra. The

“reason why” assumption of risk is obliterated is because

the matter has the right to expect complete obedience

from the servant.

“| ‘The servant does not stand on the same footing

with the master. His primary duty is obedience; and

if when in the discharge of that duty he is damaged

through the neglect of the master, it is proper that

he should be recompensed. . .”

Vandalie R. Co. v. Kendall, 1918, 119 N.E. 68 Ind.

App. 1.

It can be seen from the liberal language of the Act and

the decisions which require its liberal interpretation, that

this provision of the Federal Employers’ Liability Act is

not simply confined to accidental injuries. Under the

Federal Employers’ Liability Act, we are not without au-

thority to show that occupational disease may be caused

through the negligence of the employer; in fact, in this

case, we have direct evidence of knowledge by the em-

ployer that the spraying would affect the defendant, which

is not inconsistent with the following cases: Urie v.

Thompson, 69 S.C. 1018, 93 L. Ed. 1282; Carpenter v. A. T.

& S. F. Ry. Co., 109 C.A. 218, 240 P. 25; Allbright v.

Pennsylvania, 37 A. 2870, certiorari denied 65, S.C. 72, 89

L. Ed. 589.

There is no doubt but that this would cover a pre-

existing condition which was aggravated. In the case of

—

eo aa WSS TU Ph

-S - eee

Crozier v. Charleston W. C. Ry. Co., 71 S.E. 2, 800, an ag-

gravation of a pre-existing arm injury was the basis of

the recovery.

Repeated injuries have been the basis of recovery under

the act. See K. C. So. Ry. Co. v. Chandler, 192 S.W. 2d

302, where a switchman recovered for injuries resulting

from repeated traumas caused by repeated jumps on a

pathway which had been negligently covered with rocks.

The term “injury” as defined by the Court is not con-

fined to those inflicted by external, violent or accidental

means. See Urie v. Thompson, supra; James v. Pennsyl-

vania, 196 F. 2d 1021, 101 F. Sup. 241. It is interesting to

note the decision in the case of Lillie v. Thompson, 173

F. 2d 481, 92 L. Ed. 73, where the court allowed a recovery

on behalf of a female telegraph operator who was placed

at a point where the court held a person of reasonable

prudence should have known was one of particular hazard

for a female employee, and that thereafter, a negro not

employed by the railroad criminally attacked her.

A California case, McGuigan v. So. Pacific, 247 P. 2d 415,

allowed recovery for the death of a yard man, who had

been given three months sick leave because of a heart con-

dition, but before the end of his leave, was returned to

work as a herder after railroad superintendent misrepre-

sented the duties involved to the doctor who terminated

his leave.

These decisions were all decided under the question

of a safe place to work. As can be seen from the fore-

going citations, a safe place to work is not just safe for

a bare majority or for ninety-nine percent, but the duty

is owed to each and every employee. |

IX. PRAYER.

By the trial court’s entry of the summary judgment and

the affirmance of the trial court by “per curiam” decision

delivered in the Supreme Court of Florida which denied

the plaintiff a jury trial, demonstrates that this case was

not decided in accordance with the applicable decisions

of this Honorable Court, and that Petitioner’s rights un-

der the Federal Employers’ Liability Act, supra, have

been lessened and diminished and reduced to destruction,

and the substantive rights to trial by jury have been

violated, lessened and diminished contrary to the holdings

of this Honorable Court.

WHEREFORE, Petitioner prays that this petition be

granted and this Honorable Court do issue to the Supreme

Court of Florida its Writ of Certiorari directing and com-

manding said Court to hand up its record for review by

this Honorable Court, and for further relief in the premises

as may be proper and just.

This 25th day of January, A. D., 1956.

WILL O. MURRELL,

Attorney for Petitioner,

100 Law Exchange Building

Jacksonville, Florida.

APPENDIX.

FINAL JUDGMENT OF THE CIRCUIT COURT OF

DUVAL COUNTY, FLORIDA, CASE No. 22266-L.

Recorded in Minute Book 115, p. 99.

Summary Judgment.

This cause came on to be heard on motion of the de-

fendant, Jacksonville Terminal Company, a corporation,

for summary judgment, together with affidavits and depo-

sitions as filed by the plaintiff, C. F. Click, in opposition

to said motion for summary judgment, and the stipulation

between plaintiff and defendant that the transcript of the

record as exists in the case of C. F. Click vs. Jacksonville

Terminal Company, a corporation, Circuit Court, Duval

County, Florida, No. 21458-L, permitting use by either

party of said transcript in all respects in the prosecution

of this cause herein, and the Court having carefully ex-

amined and considered the said transcript of record, af-

fidavits and depositions as duly filed herein, it appears to

the Court and the Court so finds (a) that the issues of fact

and law as presented in the prior suit between the parties

hereto, being the case of C. F. Click vs. Jacksonville

Terminal Company, a corporation, No. 21458-L, are

identical with the issues of fact and law as exists in this

cause herein; (b) that the depositions and affidavits as filed

in this cause by the plaintiff in opposition to motion for

summary judgment as filed by defendant do not contain

or raise any different material issue of fact or law which

was not advanced or prosecuted in the prior trial between

the parties herein; (c) that from the pleadings, affidavits,

depositions and record in this cause herein, there does not

exist any genuine issue as to any material fact, and the

defendant is entitled to judgment herein as a matter of

law. Now, therefore, upon consideration thereof, it is,

ORDERED AND ADJUDGED that motion for summary

judgment as filed by the defendant, Jacksonville Ter-

minal Company, a corporation, be, and the same is here-

by granted, and that judgment be, and the same is hereby

entered for the defendant, and that the defendant, Jack-

sonville Terminal Company, a corporation, do have and

recover of and from the plaintiff, C. F. Click, the costs in-

curred by it in this cause herein.

DONE AND ORDERED IN Chambers at Jacksonville,

Duval County, Florida, this 9th day of September, 1954.

EDWIN L. JONES,

Judge.

Opinion Delivered in the Supreme Court of Florida

Affirming the Judgment of the Circuit Court of Duval

County, Florida.

Opinion filed September 16, 1955.

An Appeal from the Circuit Court for Duval County,

Edwin L. Jones, Judge.

Will O. Murrell, Jr., for Appellant.

McCarthy, Lane & Adams and Elliott Adams, for Ap-

pellee.

_—_

PER CURIAM.

Affirmed.

DREW, C. J., TERRELL, SEBRING and ROBERTS, J. J.,

CONCUR.

Order of the Supreme Court of Florida Denying Petition

for Rehearing.

Counsel for Appellant having filed in this cause Petition

for Rehearing and having been considered, it is ordered by

the Court that said Petition be and the same is hereby

denied.

A true copy,

TESTE:

GUYTE P. McCORD,

Clerk Supreme Court,

(COURT SEAL).

wae

Federal Employers’ Liability Act.

T. 45 Secs. 51 et seq., U. S. Code.

§51. LIABILITY OF COMMON CARRIERS BY RAIL-

ROAD, IN INTERSTATE OR FOREIGN COM-

MERCE, FOR INJURIES TO EMPLOYEES FROM

NEGLIGENCE; DEFINITION OF EMPLOYEES.

Every common carrier by railroad while engaging in

commerce between any of the several States or Terri-

tories, or District of Columbia, and any of the States or

Territories, or between the District of Columbia or any of

the States or Territories and any foreign nation or nations,

shall be liable in damages to any person suffering injury

while he is employed by such carrier in such commerce,

or, in case of the death of such employee, to his or her

personal representative, for the benefit of the surviving

widow or husband and children of such employee; and, if

none, then of such employee’s parents; and, if none, then

of the next of kin dependent upon such employee for such

injury or death resulting in whole or in part from the

negligence of any of the officers, agents or employees of

such carrier, or by reason of any defect or insufficiency,

due to its negligence, in its cars, engines, appliances, ma-

chinery, track, roadbed, works, boats, wharves, or other

equipment.

Any employee of a carrier, any part of whose duties

as such employee shall be the furtherance of interstate or

foreign commerce; or shall, in any way directly or closely

and substantially, affect such commerce as above set forth,

shall, for the purpose of this chapter, be considered as be-

ing employed by such carrier in such commerce and shall

be considered as entitled to the benefits of this chapter.

- a

OS he ee

_—

Apr. 22, 1908, C. 149 Sec. 1, 35 Stat. 65; Aug. 11, 1939, c.

685 Sec. 1, 53 Stat. 1404, Sec. 51, Title 45, U.S.C.A.

§53. CONTRIBUTORY NEGLIGENCE; DIMINUTION OF

DAMAGES.

In all actions hereafter brought against any such com-

mon carrier by railroad under or by virtue of any of the

provisions of this chapter to recover damages for personal

injuries to an employee, or where such injuries have re-

sulted in his death, the fact that the employee may have

been guilty of contributory negligence shall not bar a re-

covery, but the damages shall be diminished by the jury

in proportion to the amount of negligence attributable to

such employee: Provided, That no such employee who

may be injured or killed shall be held to have been guilty

of contributory negligence in any case where the viola-

tion by such common carrier of any statute enacted for

the safety of employees contributed to the injury or death

of such employee. Apr. 22, 1908, c. 149, Sec. 3, 35 Stat. 66.

Section 53, Title 45, U. S. C. A.

§54. ASSUMPTION OF RISKS OF EMPLOYMENT.

That in any action brought against any common carrier

under or by virtue of any of the provisions of this chapter

to recover damages for injuries to, or the death of, any of

its employees, such employee shall not be held to have

assumed the risks of his employment in any case where

such injury or death resulted in whole or in part from the

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

‘

‘pie ao aed eaten or ee me “ . -

such carrier; and no employee shall be held to have as-

sumed the risks of his employment in any case where the

violation by such common carrier of any statute enacted

for the safety of employees contributed to the injury or

death of such employee. Apr. 22, 1908, c. 149, Sec. 4, 35

Stat. 66; Aug. 11, 1939 c. 685, Sec. 1, 53 Stat. 1404.

Section 54, Title 45, U.S.C.A.

FEB 2) 4956

Supreme Court of the United States

OCTOBER TERM, 1955

No. 653

C. F. CLICK,

Petitioner,

versus

JACKSONVILLE TERMINAL COMPANY,

a corporation,

Respondent.

BRIEF OF RESPONDENT

IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE SUPREME COURT

OF FLORIDA

E..iott ADAMS

Attorney for Respondent

423 Atlantic National Bank Bldg.

Jacksonville 2, Florida

McCartuy, Lane & ADAMS

Of Counsel for Respondent

423 Atlantic National Bank Bldg.

Jacksonville 2, Florida

SUBJECT INDEX

I. Statement of the Pleading ............0000.0.000.:cee.

_ IL. Statement of the Facts................ EST Nelda ma le

;

Dee I: UMMUDUNOUUG oiisiitisy sn ccds chssncuiveviserevevaxesveescups

BV, AMQUMCM nnaesseceeecsseserscnnernceneven

; SES aOR SED OE ENGR OO AE AE Toe SEE T

TABLE OF CASES

Atchison, T&SFR Co. v. Saxon

j 284 U.S. 458, 52 S.Ct. 229, 76 L.ed. 397.000.000.000...

Atchison T&SFR Co. v. Troops,

281 U.S. 354, 74 L.ed. 899, 50 S.Ct. 281............. ca

Atlantic Coast Line R. Co. v. Craven,

a I cas cischaaceoncavcaskonscetoruersersnity.

Baltimore & OR Co. v. Berry,

286 U.S. 458, 52 S.Ct. 229, 76 L.ed. 1098................

Bennett v. Pilot Products Co.,

(Utah) 235 P 2d 525, 26 A.L.R. 2d 958.000.000.000.

Brady v. Southern R. Co.,

320 U.S. 476, 64 S.Ct. 232, 88 L.ed. 239........

Chesapeake & OR Co. v. Stapleton,

EL: ted NRE Ee a RR oa ESSA oreo Be NS eT a ee Be

279 U.S. 587, 49 S.Ct. 442, 73 Lied. 861... cece

_ Creamer v. Ogden Union Railway & D. Co.,

: EE . . QAR CRR SED nubian Orpen Re Eee

Ellis v. Union P.R. Co.,

| 329 U.S. 649, 67 S.Ct. 598, 91 L.ed. 572........

James v. Pennsylvania

| 196 F 2d 1021, 101 Fed Supp 241.000.0000

tn i

pit

ERR eR es

Lasagna v. McCarthy,

111 Utah 269,177 P 2d 734

Louisville & N.R. Co. v. Willhite,

a En 15

Lowden v. Bowen,

Pe Es I PIED PII by vaciieinnstissbntceaosaccvancseers: 15

Moore v. Chesapeake & O Ry Co.,

340 U.S. 573, 71 S.Ct. 428, 95 L.ed 574.000.0000. 16

New York C.R. Co. v. Ambrose,

280 U.S. 486, 74 L.ed 562, 50 S.Ct. 198.000, 11

Owen v. Rochester-Penfield Bus Co.,

278 Aw. TW. S$, BOS DEVS 26 137 isi cscs csccceevccoseesssee. 15

Raymond v. U.P.R. Co.,

cia eb ue | © & + san cenne pe ees 16

Sheaf v. Minneapolis, St. Paul S.S.M.R. Co.,

ee 5g Gas sents pig Secs oes pi se sdapsin orca usncecth 12

So. Ry. Co. v. Bell,

ON ONE oooh phoisscadkccssiecion heave 15

Spencer v. Atchison T&SF Ry. Co.,

92 Cal. App. 2d 490, 207 P 2d 127.0000... 15

Tennant v. Peoria & P.U.R. Co.,

321 U.S. 29, 64 S.Ct. 409, 88 L.ed 520.000.000.000... 11

Tiller v. Atlantic Coast Line R. Co.,

318 U.S. 54, 67, 87 L.ed 610, 617,

OP Bik S06, DAE TT GO icine ee sccsncicsssonves 11,12

Urie v. Thompson

eS | |: ae aEER eee 17

RUE UNE. vcin ins suds rancscodlanasiuutas eonesghor tuluciuaiuansasomans 15

Florida Rules of Civil Procedure #1.36(€)..............00000. 6

SA a RE MAES 2 EL ee Ae. BR SE ial oT

Supreme Court of the United States

OCTOBER TERM, 1955

No. 653

C. F. CLICK,

Petitioner,

versus

JACKSONVILLE TERMINAL COMPANY,

a corporation,

Respondent.

BRIEF OF RESPONDENT

IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE SUPREME COURT

OF FLORIDA

ELLioTt ADAMS

Attorney for Respondent

423 Atlantic National Bank Bldg.

Jacksonville 2, Florida

McCartuy, LANE & ADAMS

Of Counsel for Respondent

423 Atlantic National Bank Bldg.

Jacksonville 2, Florida

[1]

STATEMENT OF THE PLEADING

This is a petition for writ of certiorari by C. F. Click

to the order of affirmance by the Supreme Court of Florida

of the summary judgment in an action against Jacksonville

Terminal Company for damages resulting from dermatitis

allegedly contracted from a solution of creosote and diesel

fuel used by respondent, defendant below, to kill weeds in

its railroad yards in the City of Jacksonville, Florida. Peti-

tioner, plaintiff below, alleges that he contracted the derma-

titis in June of 1951, and that the respondent was negligent

in not furnishing the petitioner a safe place to work. Peti-

tioner further alleges that the creosote-diesel oil mixture is

toxic and poisonous.

The petitioner filed two suits, the first on June 3, 1953,

which was tried on December 16 and 17, 1953, resulting in

a voluntary non-suit from which the petitioner appealed.

The appeal was dismissed because the petitioner had not

paid the respondent’s judgment for costs. The second suit

was filed April 21, 1954. The complaint is identical with

the complaint in the first suit. Respondent filed an identical

answer, denying its negligence and the alleged results thereof.

On motion of respondent, supported by the transcript of —

record in the original suit, the Court entered a summary

judgment for the defendant. This judgment was affirmed

by the Supreme Court of Florida, and a petition for rehear-

ing was denied.

STATEMENT OF THE FACTS

In 1951 petitioner, C. F. Click, who hereafter will be

referred to as plaintiff, was employed as a yard conductor

by the respondent, Jacksonville Terminal Company, which

will hereafter be referred to as defendant. The defendant,

[2]

bs . hn DBE Sh NASA A SAR AL YE MELD DE PRE a

in order to kill the weeds and to keep them down in the

yards, two or three times a year, sprayed the area between

and around the tracks with a mixture of creosote and diesel

fuel. In two or three instances men received direct burns

(record pp. 105, 125 and 133) from contact with the creo-

sote spray, the effect was similar to sunburn and would clear

up, and when the skin healed they had no further trouble

with it (record p. 133). One of these men got the spray on

a raw blister. The other two operated the spray machine.

There were several hundred people in and about the tracks

and the area sprayed and, except for the three men men-

tioned, only one, the plaintff, C. F. Click, suffered any ill

effects.

In June of 1951, Mr. Click contracted a painful and irri-

tating rash. Of his experience he said: “I never complained

to anybody much about it because I didn’t know what was

eating me. I only thought the skin was tender, and maybe

it would be all right, and I heard other people have been

burned with it and would get used to it, but I kept get-

ting worse and worse,” (record p. 177). He had to give up

work for a while in July and, in August of 1951, he went to

North Carolina.

While Mr. Click was in North Carolina he contracted

pneumonia. The doctors in North Carolina treated Mr.

Click with penicillin for his pneumonia, and he broke out

with a rash again. He suffered from this rash and did not

return to work until the first of the year, 1952 (record p.

194).

Thereafter, in April 1952, Mr. Click consulted Dr. Bow-

en and in May of 1952, Dr. Bowen diagnosed his ailment

as of that time as photosensitization from the creosote-diesel

fuel solution. Mr. Click did not discover that it was the

creosote spray that was burning him until the doctor told

him in May of 1952.

[3]

Mr. Murrell: Q “Did you have any ill effects from

the spray?”

Mr. Click: A “I had a burning sensation I got into

from time to time, along about the first of 1950, and

from then on, but I didn’t know what it was.”

Mr. Adams: Q “When did you discover that it was

the creosote spray that was burning you?”

Mr. Click: A “I was pretty sure in 1950 that it was,

but I wasn’t positive until a doctor made an allergy

test and told me.” (record pp. 123-124)

In reviewing Mr. Click’s history, Dr. Bowen was of the

opinion that the rash or eruption from which Mr. Click suf-

fered from August 1951 until some time after January 1,

1952, was his allergic reaction to the penicillin with which

he was treated for pneumonia in North Carolina (record

15,17), and in September of 1953, at the time of the taking

of Dr. Bowen’s deposition, the doctor could not exclude the

possibility that Mr. Click was still suffering from sensitivity

from the penicillin (record p. 20).

In April of 1952 Mr. Click consulted Dr. Bowen and in

May 1952, Dr. Bowen diagnosed Mr. Click’s ailment as

contact dermatitis from creosote (record p. 228).

Dr. Bowen, however, was unwilling to make a diagnosis

of plaintiff’s ailment as of June of 1951, the date alleged in

the complaint.

As of June 1951, Dr. Bowen testified that plaintiff’s ail-

ment “could have been penicillir it could have been creo-

sote. He has had two or three reactions, and it could have

been any number of things” (record pp. 242,243).

[4]

TI Tobey Ee EC ele a Bae

Dr. Bowen explained the malady: “So-called photosen-

sitizing agents, among which is creosote, usually the sen-

sitization is long lasting (sic.), and they don’t have to re-

expose themselves to creosote. They can expose themselves

to sunlight, which has photosensitized the skin, so that it

will cause itching from visible dermatitis from exposure to

the sun. There is no way of telling when any individual

patient will lose that sensitization” (record p. 13).

Photosensitization means “you are sensitive to sunlight,

you react. One who has photosensitization will react ab-

normally to exposure to the sun” (record p. 234).

“Creosote is a very peculiar thing. You can have a

photosensitizing eruption and get sun, not even get close to

creosote, but get sun on it and you can have a flare up of a

pre-existing eruption, because of that photosensitizing char-

acter” (record p. 18).

Dr. Bowen stated that he rarely saw anyone with photo-

sensitization from creosote, that it was “a peculiar type of

allergic reaction, different from most of them, because most

do not photosensitize,” and that it was a type of allergic

reaction that other people do not have (record p. 229). It

is entirely different from the primary burn which an ordinary

person might suffer from direct contact with a concentrated

form of creosote (record p. 229).

Dr. Bowen went on to say that the normal person would

not react to the fumes from the spray of creosote and diesel

fuel as used by the defendant as a weed killer (record p.

230); and in the case where a person does contract photo-

sensitization from exposure to creosote it is the peculiar,

unusual reaction in the body of that person thai does it (rec-

ord p. 244).

“That there is no way to tell whether a person is or is

[5]

not allergic . . . until such time as the spray has been put

out and they have been affected by it; .. . that that is the

way it is done . . . because it is so unusual to see a photo-

sensitized dermatitis, — very unusual . . .” (record p. 231).

In answer to a question by Mr. Murrell, Dr. Bowen fur-

ther testified: “I don’t think creosote, the way it is handled

is any more hazard than anything else. For instance, if you

are going out there putting a pipe down for your water, it

is a hazard, because you can get creeping eruption. And I

don’t think creosote would be considered any more of a haz-

ard than just the normal hazard of living, as far as working”

(record p. 28).

Plaintiff seeks to charge defendant with knowledge that |

the spray had a harmful effect on him. In his affidavit (rec- |

ord p. 51-54) he says he requested Yardmaster Smith that |

he be given other duties and not be required to be in and

about the spray “which the Yard Master knew was harm-

ful” and that he was required to be in the area sprayed

“against his will but at the instructions of his employer.”

An affidavit in support of or opposed to a motion for

summary judgment must state facts that would constitute

probative evidence®. Click’s statement that “the yardmas-

ter knew the spray to be harmful,” is a conclusion that is not

admissible evidence. Smith was plaintiff’s witness at the |

first trial. He said he hadn’t worked in the coach yards for |

three years (record p. 93). He said Click did not complain

to him about his work in the coach yard (record p. 91) or

about the spraying (record p. 92) and there is nothing in

his testimony that would indicate that he knew the spray to

be harmful.

Plaintiff’s affidavit further says that he complained to

°Florida Rules of Civil Procedure #1.36(e)

[6]

ae ee! ee ee

wo) >. a

OL AAR ETEE SE UN Pate 0 TELL BE tL SC ON ae

Yardmaster H. Wilson who is said to have replied “I just

thought you were beefing.” Mr. Wilson was one of the

plaintiff’s witnesses at the first trial. He testified: “I heard

him mention he didn’t like to work around where that weed

killer had to be sprayed” (record p. 139). Click made that

complaint several times, but there is nothing in Wilson’s

testimony that indicates that he had any knowledge that the

spray was harmful, and in fact Mr. Wilson did not know

what had caused Click’s skin eruption (record p. 141).

In fact, to begin with, Click didn’t complain much be-

cause he “didn’t know what was eating on him” (record p.

166). Furthermore, the cause has not been definitely deter-

mined. Dr. Bowen testified as to his diagnosis of plaintiff in

April and May of 1952 (record pp. 179,190), but as to his

condition in June of 1951, Dr. Bowen stated that “‘it could

have been penicillin, it could have been creosote . . . it could

have been any number of things’ (record pp. 242-243).

It was not until he compiled his affidavits to oppose the

motion for summary judgment that plaintiff attempted to

prove notice to the defendant of his condition. And, as has

been pointed out, the statements contained in the affidavits

are not of facts, but are conclusions that have no probative

value.

III

QUESTION PRESENTED

WHERE THE COMPLAINT ALLEGES THAT THE

DEFENDANT CARELESSLY AND NEGLIGENTLY

FAILED TO FURNISH THE PLAINTIFF A SAFE

PLACE TO WORK BY SPRAYING THE WEEDS

BETWEEN TRACKS WITH A TOXIC AND POI-

SONOUS SPRAY, MAY THE PLAINTIFF RECOVER

BY PROVING ONLY THAT HE SUFFERED IN-

JURY FROM THE SPRAY?

This question was and should be answered in the nega-

tive.

[7]

The defendant cannot admit that plaintiff has correctly |

stated the question presented. Plaintiff states the question |

presented as follows:

“Where plaintiff contracted an occupational disease |

known as dermatitus from a ‘weed killer’ consisting of _

creosote and diesel oil, a highly toxic and poisonous

liquid, wilfully sprayed by defendant on its tracks, yards,

roadbed and premises where plaintiff, defendant’s em-

ployee, railroading in interstate commerce, was required

to walk and work, and the plaintiff became photosensi-

tized, burned, poisoned and infected thereby, resulting |

in said dermatitus, and the plaintiff brought an action |

against defendant under the Federal Employers’ Liabil-

ity Act, to which assumption of risk is no defense, and

contributory negligence is only a partial defense, did the

Supreme Court of Florida properly apply the applicable

decisions of the United States Supreme Court under said

Act in affirming an order entering a summary judgment

by the trial court, without submitting the question of

proximate cause to the jury?”

The question as thus stated assumes the correctness of

plaintiff’s position on the very point here in controversy.

The plaintiff assumes that the creosote and diesel oil spray

is “a highly toxic and poisonous liquid,” but that is not

borne out by the record. The question presented is not

whether the allegations and proof of defendant’s negligence

was sufficient, but whether or not there was any negligence

alleged or proven. It is the duty of the carrier to use rea-

sonable care to furnish its employees with a reasonably safe

place to work, not to insure its employees from all injury. —

The question presented might be fairly stated:

“Where the complaint alleges that the defendant care- —

lessly and negligently failed to furnish the plaintiff a safe

place to work by spraying the weeds between tracks with

[8]

a toxic and poisonous spray, may the plaintiff recover

by proving only that he suffered injury from the spray?”

ARGUMENT

It is necessary that the plaintiff prove that the creosote

and diesel oil spray was a toxic and poisonous liquid. This

he totally failed to do.

Plaintiff’s witness, Dr. Jack H. Bowen, said that the use

of the spray was no more of a hazard than the normal haz-

ards of living (record p. 28); that a normal person would

not have a reaction to the spray (record p. 229); that in the

case where a person does contract photosensitization from

exposure to creosote it is the peculiar, unusual reaction in

the body of the person that does it (record p. 244); and

that it is a peculiar allergic reaction in the person that is

rarely seen which causes him to suffer from photosensitiza-

tion (record p. 229).

There is no showing that the spray is “highly toxic and

poisonous.”

Out of several hundred employees of the defendant,

plaintiff alone was affected.

If the spray had been “highly toxic and poisonous” it

would have adversely affected the normal man. It did not

affect the normal man.

Plaintiff attempts to impute an inference of carelessness

or recklessness in the conduct of the defendant by saying

that the liquid was “wilfully sprayed by defendant.” The

Spray was used intentionally. The spray was known to de-

fendant’s chief engineer as an effective means of killing

[9]

Aten ies

Peet et

weeds. He had used a similar solution with the Seaboard

Air Line Railroad since the year 1947, with no record of

any injury (record pp. 42,44).

Plaintiff’s medical witness, Dr. Jack H. Bowen, stated

that the creosote spray mixture was not harmful to the nor-

mal person, and that the only way it could be ascertained

to be harmful is to expose a person to it and observe the

reaction (record p. 231); but that the risk of using the spray

was no more of a hazard than anything else (record p. 28).

If by the use of the word “wilfull” plaintiff intends to

imply that the spray was used with reckless indifference to

safety, that inference is not supported by the record.

The answer to this question by the trial court and by the

Supreme Court of Florida in the negative is correct. Before

the plaintiff can recover under the Federal Employers’ Lia-

bility Act he must allege and show negligence on the part

of the employer, and that such negligence was the proximate

cause of his injury.

There are many decisions from the Supreme Court of

the United States that the Federal Employers’ Liability Act

does not make the employer the insurer of the safety of his

employees while on duty, but the basis of his liability is

negligence which must be in whole or in part the cause of

the injury. One of the cases to reiterate the rule is Ellis v.

Union P.R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572,

wherein the Court stated:

“The Act does not make the employer the insurer of

the safety of his employees while they are on duty. The

basis of his liability is his negligence, not the fact that

injuries occur. And that negligence must be ‘in whole

or in part’ the cause of the injury. 45 U.S.C.A. 51, 10A

F.C.A. Title 45 Sec. 51; Brady v. Southern R. Co., 320

U.S. 476, 484, 88 L ed. 239, 245 S.Ct. 232.”

[10]

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A previous case is that of Tennant v. Peoria & P.U.R.

Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.ed. 520, Mr. Justice

Murphy, writing for this Court, said:

“In order to recover under the Federal Employers’

Liability Act, it was incumbent upon petitioner to prove

that respondent was negligent and that such negligence

was the proximate cause in whole or in part of the fatal

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

54, 67, 87 L ed 610, 617, 63 S.Ct. 444, 143 A.L.R. 967.”

See also Brady v. Southern R. Co., 320 U.S. 476, 64

S.Ct. 232, 88 L.ed. 239, where this Court said:

“Liability arises from negligence not from injury un-

der this Act. And that negligence must be the cause of

the injury. Tiller v. Atlantic Coast Line R. Co., 318

U.S. 54, 67, 87 L. ed 610, 617, 63 S.Ct. 444, 143 A.L.R.

967.”

See also the case of Baltimore & O. R. Co. v. Berry, 286

U.S. 458, 52 S.Ct. 229, 76 L.ed. 1098. Mr. Justice Stone,

in delivering the opinion of this Court, stated:

“Proof of negligence by the railroad was prerequisite

to recovery under the Federal Employers’ Liability Act.”

The case of Atchison, T. & S. F. R. Co. v. Saxon, 284

U.S. 458, 52 S.Ct. 229, 76 L.ed. 397, is likewise in point.

Mr. Justice McReynolds, in delivering the opinion of this

Court, stated:

“As often pointed out, one who claims under the

Federal Act must in some adequate way establish neg-

ligence and causal connection between this and the in-

jury. New York C. R. Co. v. Ambrose, 280 U.S. 486, 74

L. ed. 562, 50 S. Ct. 198, Atchison T. & S. F. R. Co. v.

Troops, 281 U.S. 354, 74 L. ed. 899, 50 S.Ct. 281.”

In the case of Chesapeake & O. R. Co. v. Stapleton, 279

[11]

U.S. 587, 49 S.Ct. 442, 73 L.ed. 861, Mr. Chief Justice

Taft, in delivering the opinion of this Court, stated:

“The language of the Federal Employers’ Liability

Act shows unmistakably that the basis of recovery is

negligence and that without such negligence no right of

action is given under this act * *

Petitioner contends that the doctrine of law laid down

by these decisions are “swept into discard with the adoption

of the 1939 amendment to the Federal Employers’ Liability

Act.” Petitioner cites the case of Tiller v. Atlantic Coast

Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.ed. 610, as

authority. The 1939 amendment wiped out every vestige

of the doctrine of assumption of risk. This Court said in

that case:

“Tt was this maze of law which Congress swept into

discard with the adoption of the 1939 amendment to

the Employers’ Liability Act, releasing the employee

from the burden of assumption of risk by whatever name

it was called. ‘he result is an act which requires cases

tried under the Federal Act to be handled as though no

doctrine of assumption of risk had ever existed.”

Negligence must still be proven in order for an employee

to recover under the Federal Employers’ Liability Act. The

1939 amendment did not change that rule. See Ellis v. Union

P.R. Co., supra, and Brady v. Southern R. Co., supra.

Under the Federal Employers’ Liability Act, employers’

liability is to be determined under the general rule which

defines “negligence” as lack of due care under the circum-

stances, or failure to do what a reasonable and prudent man

would ordinarily have done under the circumstances of the

situation, or doing what such reasonable and prudent man,

under existing circumstances, would not have done. Sheaf v.

Minneapolis, St. Paul & S.S.M. R. Co., 162 F 2d 110.

[12]

0 follow plaintiff’s contention to its logical conclusion

would dispense with the necessity of finding negligence and

would require every case under the Federal Employers’ Lia-

bility Act to be submitted to a jury. But negligence must

still be proven in order for an employee to recover under

the Federal Employers’ Liability Act. The 1939 amend-

ment did not change that rule. Ellis v. Union P.R. Co.,

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

88 L ed 239.

In stating his second question, plaintiff again assumes

the correctness of his position on the very point in contro-

versy: First, that the spray was poisonous and toxic and

willfully used, and secondly, that the plaintiff was compelled

to work in contact with the spray after it was known by the

defendant to be poisonous. These assumptions are unwar-

ranted and not supported by the record. The plaintiff im-

putes negligence in that the defendant did not make tests

of the mixture before it was used to assure that it would not

be harmful, and further, that the defendant was negligent

in continuing to use the mixture as a spray and to require

the plaintiff to continue to work where it had been sprayed

after he had complained about the use of it.

The record discloses that plaintiff made some general

complaints (record p. 139), but it is not indicated when the

complaints were made, or that the yardmaster knew the

cause of plaintiff’s skin eruption (record p. 141), or that

plaintiff himself knew what caused his ailment until April or

May of 1952 (record pp. 176,177, 189,190).

If the plaintiff didn’t know the cause of his ailment until

May of 1952, and if the yardmasters didn’t know the cause

of plaintiff’s ailment, all of which is borne out by the record,

then certainly the defendant had no knowledge of any harm

to the plaintiff from use of the spray in the month of June

1951, the time complained of by the plaintiff.

[13]

But plaintiff says that defendant should have known that

the spray was harmful, and if not harmful to others, the

defendant should have known that it was harmful to plain-

tiff.

Plaintiff produced as a witness Jack H. Bowen, M.D., of

whom plaintiff’s counsel said, “This gentleman is in a highly

specialized field; probably not only outstanding in his pro-

fession, but in this particular field, probably the most out-

standing man in the southeastern part of the United States.”

(record p. 238). Dr. Bowen testified that the use of the

creosote spray was no more than the ordinary hazards of

life (record p. 28), and that probably the only way you

could tell whether or not the use of it would be harmful

to anyone was to put it out and use it (record p. 231).

If the hazard in the use of the spray is no more than the

ordinary hazards of life, then the defendant was not negli-

gent in using the spray without first making tests or experi-

ments.

Of the plaintiff’s ailment, Dr. Bowen said, “it is so un-

usual to see a photosensitized dermatitis, very unusual . . .”

(record p. 231); also, the normal person would not react to

the fumes from the spray of creosote and diesel fuel as used

by the defendant as a weed killer. “No. The usual person

does not react to this. Of course, if they did, they wouldn’t

use it down there.” (record p. 230)

No reasonable physical examination of the plaintiff

would have disclosed his peculiar reaction to the creosote

spray:

Mr. Murrell: Q “And there is no way to tell whether

a person is or is not allergic, as I understand it, Doctor,

until such time as the spray has been put out and they

have been affected by it; is that correct?”

[14]

ane

Dr. Bowen: A “That is actually the way it is done,

usually done, because it is so unusual to see a photo-

sensitized dermatitis, very unusual.” (record p. 231)

Creamer v. Ogden Union Railway & D. Co., 242 P 2d

; 575, is similar to the instant case. Creamer was a coach

_ cleaner for the railroad. He suffered heart injury from over-

exertion. The Court stated:

se ea) EE Rae

Rew ee 7A Dea

Se Bw 8 ial,

“In a very able brief counsel urge . . . that out of 100

or more coach cleaners defendant should have foreseen

the probability that one of them might possess a latent,

undetectable physical weakness like plaintiff’s requiring

defendant to furnish all coach cleaners with equipment

capable of eliminating any manual labor possibly in-

imicable to one having such weakness. Such contention,

we believe and hold, would strain accepted concepts per-

sonal to the mythical but nonetheless legally recognized

ordinary prudent man, hitherto recognized by us (Las-

agna v. McCarthy, 111 Utah 269, 177 P 2d 734), and,

absent statutory requirement to the contrary, would cast

a master in the role of insurer against undiscoverable

physical eccentricity. The law does not accept such a

view either generally (175 A.L.R. 985; Owen v. Roches-

ter-Penfield Bus Co., 278 App. Div. 5, 103 NYS 2d

137; Louisville & N. R. Co. v. Willhite, 300 Ky. 75, 187

SW 2d 1010; Spencer v. Atchison, T&SF Ry. Co., 92

Cal. App. 2d 490, 207 P. 2d 126) or under the F.E.L.A.

(So. Ry. Co. v. Bell, 4th Cir., 114 F 2d 341; Lowden v.

Bowen, 199 Okla. 180, 183 P 2d 980)—but honors the

common law principle of ordinary prudence even where

there is a failure to supply the latest and safest equip-

ment. (Atlantic Coast Line R. Co. v. Craven, 4th Cir.,

185 F 2d 176; Lowden v. Bowen, supra).

“Under the Act (Federal Employers’ Liability Act)

the master’s negligence must be shown before liability

arises.” (Lasagna v. McCarthy, supra)

[15]

Continuing, the Court further stated: |

“Where a latent physical defect is not known either

by the master or the servant . . . to hold the master liable

regardless of such facts, ... is to predicate negligence

on some elusive quality of clairvoyance quite inconsistent

with principles of reasonable foreseeability. 175 ALR

985. We have held that where products sold in chan-

nels of trade result in an injury to a person having an

allergy that is not reasonably foreseeable, there can be

no recovery, and we believe the reasoning there ap-

plicable here. (Bennett v. Pilot Products Co. (Utah)

235 P 2d 525, 26 ALR 2d 958)

ie I re

“Our sympathy extends to plaintiff, but we must sub-

ordinate it, if in the honoring of it we uproot the prin-

ciple that, absent statutory requirement, there can be no

recovery if no legal duty has been violated.

“As to plaintiff's ...cention that denying recovery

here denies him a constitutionally guaranteed jury trial,

answer is foun”: in the language oi Mr. Justice Wolfc in

a case decided ‘s, us (Raymond v. U.P.R. Co., 113 Utah

26, 191 P 2d 137) and in decisions of the U. S. Supreme

Court (Moore v. Chesapeake & O. Ry. Co., 340 US.

573, 71 S.Ct. 428, 95 L ed 574), to the effect that no

such deprivation occurs where the facts indisputably

establish no right to relief.”

he ee ae es se a. SOO see eee

In the Bennett case mentioned above, the Court stated :

(26 ALR 2d, Text 961):

“Appellant appeared to be sensitive to the mixture

much the same as some people respond to strawberries, _

—a commodity honored so frequently by the authorities

in illustrating difference in liability to the allergic in con- |

trast to the normal individual. We believe, that under

the facts of this case, the trial judge strained neither ;

common sense nor realism in concluding that appellant’s

ailment, being the result of an allergy, was not com-

pensable as a matter of law. We are syinpathetic with

appellant and her misfortune, but cannot require the

[16] |

——

merchant to assume the role of absolute insurer against

physiological idiosyncracy. To do so also would invest

the elusive ordinary prudent man with a quality of fore-

seeability that would take him out of character com-

pletely. Every substance, including food which is daily

consumed by the public, occasionally becomes anathema

to him peculiarly allergic to it. To require insurability

against such an unforeseeable happenstance would weak-

en the structure of common sense, as well as present an

unreasonable burden on the channels of trade.”

In Urie v. Thompson, 69 S. Ct. 1018, 93 L ed. 1282, re-

lied on by plaintiff, and in other cases involving silicosis,

such as James v. Pennsylvania, 196 F 2d 1021, 101 Fed

Supp 241, the employers’ liability has been determined from

the negligent and faulty maintenance of the locomotive sand

box which permitted the sand dust to escape in unreason-

ably large quantities and thus injure the employee. Negli-

gence is shown in the faulty maintenance, and the resulting

ailment is one common to all people, and to which all peo-

ple are susceptible, not an allergic reaction resulting from a

physiological idiosyncracy.

CONCLUSION

Under the Federal Employers’ Liability Act the railroad

is not a guarantor nor an insurer of the safety of its em-

ployees. The basis of the railroad’s liability is its negli-

gence, not the fact that injuries occur.

In order for plaintiff to recover in this case, he must

allege and prove, not that he was injured, but that the rail-

road negligently failed to use reasonable care to furnish him

a reasonably safe place in which to perform his duties. This

can only be done by showing affirmatively the negligent act

or omission which rendered his place to work not reasonably

safe to the plaintiff. Then, that negligence must be shown

[17]

to be the proximate cause, in whole or in part, of the in-

juries sustained by the plaintiff.

The theory of the complaint in this action is that the

defendant carelessly and negligently failed to furnish the

plaintiff a reasonably safe place to work. The place was the

yards of the defendant at Jacksonville, Florida. Plaintiff

contends that the diesel fuel-creosote spray rendered the

yards unsafe. It may not have been safe for the plaintiff,

but it was safe to the normal person, and there is no rea-

sonable or foreseeable way in which the harmful effects to

the plaintiff could have been anticipated.

Plaintiff further contends that defendant required him to

continue work after notice of the unsafe condition to plain-

tiff. But the plaintiff himself did not know the cause of his

injury; defendant’s yardmasters did not know the cause of

plaintiff’s injury; and plaintiff’s medical witness could not

express an opinion that plaintiff’s injury resulted from the

cause alleged. In fact, the medical witness testified that in

June of 1951, the date complained of, plaintiff’s injury

“could have been penicillin, it could have been creosote. He

has had two or three reactions, and it could have been any

number of things” (record pp. 242, 243). If the allegations

and facts proven in this case are sufficient to state or prove

a cause of action, then the resulting allergic reaction to any

substance by any employee, no matter how rare or unfore-

seeable is sufficient upon which the jury may decide the

question of negligence. Such a doctrine could so permeate

the entire operation and maintenance of r ‘lroads as to make

the business a hodgepodge of the whims and caprices of

various juries in all sections of our nation. Such a view

would necessarily set up the juries’ conception of what

should be standard in place of the careful calculations and

experience of engineers and other experts whose studied con-

clusions have been the standard heretofore prescribed and

followed.

[18]

The plaintiff is entitled to no presumption of negligence

nor can the Court assume, or allow the jury to assume, any

negligence merely upon proof of existing conditions. The

negligence must be affirmatively shown and that negligence

must be proven to be the proximate cause.

It is respectfully submitted that, upon a careful con-

sideration of the record, it will be found that there is no

evidence, or any inference which reasonably may be drawn

from the evidence, when viewed in a light most favorable

to the plaintiff, which can sustain a recovery for the plain-

tiff. Defendant further respectfully submits that the petition

for a writ of certiorari should be denied.

Respectfully submitted _.

Etxtiott ADAMS

Attorney for Defendant-Respondent

423 Atlantic National Bank Building

Jacksonville, Florida.

February 27), 1956.

McCarty, LANE & ADAMS

Of Counsel for Respondent,

423 Atlantic National Bank Building,

Jacksonville, Florida.

[19]

to be the proximate cause, in whole or in part, of the in-

juries sustained by the plaintiff.

The theory of the complaint in this action is that the

defendant carelessly and negligently failed to furnish the

plaintiff a reasonably safe place to work. The place was the

yards of the defendant at Jacksonville, Florida. Plaintiff

contends that the diesel fuel-creosote spray rendered the

yards unsafe. It may not have been safe for the plaintiff,

but it was safe to the normal person, and there is no rea-

sonable or foreseeable way in which the harmful effects to

the plaintiff could have been anticipated.

Plaintiff further contends that defendant required him to

continue work after notice of the unsafe condition to plain-

tiff. But the plaintiff himself did not know the cause of his

injury; defendant’s yardmasters did not know the cause of

plaintiff’s injury; and plaintiff’s medical witness could not

express an opinion that plaintiff’s injury resulted from the

cause alleged. In fact, the medical witness testified that in

June of 1951, the date complained of, plaintiff’s injury

“could have been penicillin, it could have been creosote. He

has had two or three reactions, and it could have been any

number of things” (record pp. 242, 243). If the allegations

and facts proven in this case are sufficient to state or prove

a cause of action, then the resulting allergic reaction to any

substance by any employee, no matter how rare or unfore-

seeable is sufficient upon which the jury may decide the

question of negligence. Such a doctrine could so permeate

the entire operation and maintenance of railroads as to make

the business a hodgepodge of the whims and caprices of

various juries in all sections of our nation. Such a view

would necessarily set up the juries’ conception of what

should be standard in place of the careful calculations and

experience of engineers and other experts whose studied con-

clusions have been the standard heretofore prescribed and

followed.

[18 ]

A ee Sod

ae tn

% att es

The plaintiff is entitled to no presumption of negligence

nor can the Court assume, o. allow the jury to assume, any

negligence merely upon proof of existing conditions. The

negligence must be affirmatively shown and that negligence

must be proven to be the proximate cause.

It is respectfully submitted that, upon a careful con-

sideration of the record, it will be found that there is no

evidence, or any inference which reasonably may be drawn

from the evidence, when viewed in a light most favorable

to the plaintiff, which can sustain a recovery for the plain-

tiff. Defendant further respectfully submits that the petition

for a writ of certiorari should be denied.

Respectfully submitted

-_~

ELiiott ADAMS

Attorney for Defendant-Respondent

423 Atlantic National Bank Building

Jacksonville, Florida.

February 27), 1956.

McCartuy, LANE & ADAMS

Of Counsel for Respondent,

423 Atlantic National Bank Building,

Jacksonville, Florida.

[19]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.