Respondents Reply to Petition for — Robinson v. Gulf, Colorado & Santa Fe Railway Co.

RE CARY. FILED”

| Ome MAR 10 1960

> LIAMES R. BROWNING, Clerk

IN THE

UPREME COURT OF THE UNITEN STATES

OCTOBER TERM, 1959

No. 684

HELEN MARY. ROBINSON, ADMINISTRATRIX,

°" A . Petitioner,

Us. ;

GULF, COLORADO AND SANTA’ FE RAILWAY _

COMPANY, .Respondent a

RESPONDENT'S REPLY TO

PETITION FOR CERTIORARI

HUDSON, KELTNER, JORDAN

&..CUNNINGHAM

1313 Continental Life Building

Fort Worth 2, Texas

't Counsel:

1 HER HUDSON

1 § Continental Life Building

rt Worth 2, Texas

+

Fort Worth Brief Printing Cé., 610 So. Jennings Phone ED 2-407)

J

INDEX

. Page

LIST OF AUTHORITIES «00.0.0... PRPUNGC Eon g

STATEMENT: OF THE CASE ..o..0.0.c:cctceeccecoe 1-4

_ JURISDICTION ........ at reece are ee Co ae

QUESTIONS PRESENTED oo000.05.0000.0-Scccccecsseseeceeeecet. 6

CONSTITUTIONAL QUESTION® 0.0... Carew 6

ON THE MERITS ......0.--cccc.cceececseensoeee Pacers 7-26

NO REVERSIBLE ERROR UNDER TEXAS |

PRACTICE 0 neneeneneeetinnninnn 18-25

SUMMARY. ......... Le had aie Ba Pach c 26°

CONCLUSION | ...stscssscscnsssnesee deccakie TRA

. SIGNATURE AND ADDRESS OF COUNSEL ............ 28°

_ APPENDIX (RULE 279, TEXAS RULES OF CIVIL

BE oschibnntonicccinnsninalniiinennnoes ill

Q.

fare

«~ Cruse vs. panies (Wr. NRE), 293 S.W. ‘2d 616 | ie kaadedae

LIST OF AUTHORITIES

— a) Page

| or

‘Anderson vs. Broome (no writ history),

z A en oer nee COE : r@-23

| - Arnold vs. Panhandle & Santa Fe Ry. Co., .

353 U.S. 360, 1 L.Ed. 2d 889, 77 S.Ct. 840 0G

— | 7

- Black vs. Cutter Laboratories, 351 U.S. 292,

100 L.Ed. 1188, 76 S.Ct. 824.02... iletnidiacnoumelpacies 5

“Brinkley vs. Pennsylvania R. Co., 358 U.S. 865, __

| 3 L.Ed. 2d 97, 79 S.Ct. 94 ....... ai aaeeacellh Peaiecllibticiodenon inane ae

Burch vs. Reading Co., 353 U.S. 965, 1 L.Ed. 2d. 914, -

oo” —e. NEAL SCR nt Be | SONS = 5

—_ po .

Coray vs. Southern Pacific Co., 335 U.S. 520, °

93 L.Ed. 208, 69 S.Ct. 275 ..

ake I) aime

Daulton vs. Southern Pac. Co., 352 U.S. 1005, .

1 L.Ed. 2d 549, * 77 S.Ct. BE atanoses Jeoweehuansbonsoes onup 5

—E—

Edmondson vs. Carroll, (Ft. Worth Court—Dism.,

Judgm. Cor.) 134 S.W. 2d 378 ee ieee. eee 23

| . —G—. :

'Ginther vs. Southwest Workover Co,, (Civ.App.— —

no writ hist.) 286°S. Ww. GE TI sp Ricentecininsmnanioninttngen 24

Gulf States vs. Dillon, (Civ.App. —ne writ hist. as

112 S.W. 2d 752 ...... sake seablegashbasssanmidganmanksntiaaien 24...

Guthrie vs. Sinclair Refining Co. (Civ. App. —Writ

refused, N.R.E.) 320 S.W. 2d 396 ssa: denied

ovenibnr i a a 14, 25

a.

il \ . iii

LIST OF AUTHORITIES (Continued)

© : ‘ : Page

: | a ane, | .

Harris vs. Leslie, 128 Tex. 81, 96 S.W. 2d 276 0.0... 23

.Herrera vs. Zinberg (Civ.App.—Writ refused, N.R.E. a

I sl eaniot ene ibbdeaiees eed Ts 13

Hicks vs. Harper, 134 Tex. 89, 132. S.W. 2d 579~...00..0........... 21.

Houston Oil Co. vs. Goodrich, 245 U. S. 440,’

GB L.Ed. SOB, SB S.Ct. 2D nnn... annals Mee ceeeg ee cvoneeee G

. _— I — a

Inman vs. Baltimore & Ohio R. Co., No. 36, 7

4 L.Ed. 2d 198, advance sheet ............. ER. Pee nes Ssicition 25

. | we J ar : .

Johnson vs. Miller, 142 Tex. 228, 177 S.W. 2d 249 ........... 21

2 . art L aos

Lavender vs. Kurn, 327 U.S. 645, 90 L.Ed. 916, e

Fl IE I aiiaciecen cpitncnineseoeiecainieninkaeicnissnnichinnsesiksranonnnacickt poigns AM

. ee M —

McCarver vs. City of .Corpus Christi, 155 Tex. 153, :

a cssntinneninninaniiiintenccapaanannitnan’ 21

McDonald vs. Joske’s (Civ. App. —no writ hist. Ss

a ia ci adaccnadainnnanentascannsh Ma AE 24

McDonald vs. Pennsylvania R. Co. (3rd Cir.) . ns

~ 210 F..2d 524 .. isguinosanaceee

Mitchell vs. Mills (Wr. N.R. E.) 264 S. W. 2d 749 hou 23

en

—_— Texas Motor Lines vs. Hodges, 138 Tex. 280,

158 S.W. 2d ‘487 NPE ESAS ENE REC Oe Lee 2B

ay . .

Robinson vs. Gulf, Colorado and Santa Fe Ry. Co.,

I eo eenieiieiinighainanincniin 1,20 .

Rogers vs. Missouri Pacific R. Co., 352 U.S. 500, _

1 L.Ed. 2d 493, 77 S.Ct. 443 Sere ban Aik ie et TS 15, 16 .

a iv

LIST OF AUTHORITIES (Continued)

es Page

—S— eee es

Smith & Conklin Bros. vs. Griffith, 153 Tex. 341,

I TY TU sc csshidi ch cpaneiin ecahnsnnesqgmnabaninea STN ete 22

* Solgaard vs. T. & N.O. R. Co., 149 Tex. |

I A eines sieksseeee cae

Sproles vs. Rosen, 126 Tex. 51, 84 $.W, 2d 1001... 24

Sunset Motor Lines vs. Blasingame (Wr. dism.)

245 S.W. 2d 288 ssuecessssens FS Side tea aS "Wena econ

ae ae |

T.& N.O. R. Co. vs. Sturgeon, 142 Tex. 222,

oN OT

_ Texas Employers’ Ins. Co. vs. Frankum, 148 Tex. 95, .

Be NS OIE UD petececttercecistonsnsintnssnceonnpbeceiponsnnecicshsonrsesss }.... 04

. Texas General Ins. vs. McNeill (No wr it history) |

Se I I hcetech once caiivictccssnsdtectaicallamearee science cha

Thompson vs. Robbins, (Tex. S. Ct:) 157 Tex. 463,

304 S.W. SUES saidend- cnnRccreusnnisk Gonebgnls senlachaehenesaoaisiskanconaes 17, 24

ier pA Coast Line R. Co., 318 U.S. 54,

ST Z.Ed.. 610; 63 S.Ct. 444 once ccctecceeesecnsnceneseneeneeses 15.

Triangle Cab Co. vs. Taylor, 144 Tex. 568, |

SE Ia SE TID anssicdncetuisigilincnimncicnaiubiaitdnanabeiecnnen » EEE IEE 24

s v

LIST OF AUTHORITIES (Continued)

tee , Page

— :

- Webb vs. Illinois Central R. Co., 352 U.S. 512,

1 L.Ed. 2d 503, 77 S.Ct, 452 one eect teteteeeees :....15, 16

Wilkerson vs. McCarthy, 336 U.S. 53, $8 L. Ed. 497, °

Sse. 0 WH... AG ARES Sein seed,

STATUTES AND RULES OF CIVIL PROCEDURE

* 28 ULS.C., Sec. 1254 (8) © ...:....ceeccseeeoee: ER Os eae cia

Article 6701d, Revised Civil Statutes 2020.00 25

Texas Rules of Givil Procedure, Rule 279........ 21, 23, appendix

SECONDARY AUTHORITIES

41-B Texas jurisprudence Get, GOB. lies icencecte Lesvos 22

41-B Texas Jurisprudence Sec. 425 .0.....0000000004.... eke seen 23 ’

41-B Texas Jurisprudence Secs. 429, 431 .............. Oe aoe

41-B Texas Jurisprudence Sec. 452 2.0.0.0... a

IN THE

SUPREME COURT OF THE UNITED STAT ES

* OCTOBER TERM, 1959

No. 684

HELEN MARY ROBINSON, ADMINISTRATRIX,

Petitioner,

vs. _e

GULF, COLORADO AND SANTA FE RAILWAY

_ COMPANY, Respondent

© RESPONDENT'S REPLY TO -

PETITION FOR, CERTIORARI

To the Honorable the Chief Justice and the Associate

_ Justices of the Supreme Court of \the United States:

Gulf, Colorado and Santa Fe Railway Company,

‘respondent herein, prays that the petition for cer-

tiorari be dismissed, or in the alternative .that it be-

denied. Respondent denies jurisdiction and denies

error, and in support of such contentions presents the

following:

°

STATEMENT OF THE CASE

- The decision of the Court of Civil Appeals for the

Second Supreme Judicial District of Texas at Fort

Worth, Texas, to which the petition for certiorari is

directed, is reported as Robinson vs. Gulf, Colorado

and Santa Fe Ry. Co., 325 S.W. 2d 432. That opinion

contains a concise summary of the facts as well as

the jury findings.

9

—

- PLAINTIFF'S STATEMENT

In the Petition for Certiorari (page 5-8) plaintiff

purports to state the facts. We cannot accept such

statement as being more than partially accurate. If

it had ‘been labled “Plaintiff's Allegations” we woul:

accept it with the statement that such allegations

were not, supported by the evidence and were nega-

tived. by ‘the jury verdict. We cannot even accept

plaintiff's ‘approach that in spite of a clear verdict

_for the: Railroad on all issues of liability, the evidence

must be construed most favorable to the plaintiff. Nor

can We accept the repeated statement (Petition for

_ Writ of Error, page 4, page 12, page 13, page 15.

page 18), that the plaintiff in-this case was denied

a trial by jury. Pluintiff had a very favorable jury

trial and the jury, found against her. The Court of

Civil Appeals statement of facts and of the jury find-

ings are sufficient, we think, to. demonstrate that the

plaintiff has not made either a fair or.accurate state-

ment of the facts. We, therefore, feel that it is neces-

sary to make a brief summary of the evidence:

STATEMENT OF FACTS |

The plaintiff's husband, Grady Robinson, was fire-

man on the. southbound Santa Fe Texas Chief, .anil

both he and engineer J. H. Estes were killed on Au-

' gust 12, 1957, when that passenger train hit a Tar-

rant County asphalt truck at a wide open country

‘crossing at about 12:45 P.M. The country. road in-

volved is called both Avondale School Road and Blue

Mound Road. It has very little traffic on it, and there -

- 3

js not a tree, a bush, a house, a barn or any other

character of object along the road or on the railroad

“right-of-way which in any way: interferes with the

view of an approaching train. The crossing is so wide

open that no one had ever heard of an accident ‘at

this crossing before, and there is positive testimony

that there had not been one there for at. least 25

years. It was a gravel road, and the County had de-

cided to “hot top” it, but had given no notice of its

intention to the Santa Fe, nor had any. work been

done‘near the track prior to the accident. The asphalt

truck ‘Was spreading (or shooting) asphalt on the

gravel road, an.l the noise of the machinery kept the

truck driver and his helper from hearing the whistle

of the train, and because of their attention to their

work, they failed to look for the train, which was °

plainly in view. The collision occurred, and the fire-

man and the engineer were. both killed from the hot

asphalt. The driver of the truck was also killed, and

the helper was badly burned.

With 20 or more witnesses and a week's trial, the

case was submitted to the jury, in accordance with

' Texas practice, on special issues. Seven different is-

sues on the railway company's negligence were sub-

mitted, ard the jury answered in each case “no negli-

gence.” The jury also found no negligence on the part

of the plaintiff's s deceased husband. The jury ~found

that the sole cause of the accident was the conduct

of the County employees. — |

The jury, fulfilling its pre-eminent role in FELA

- eases, found.that there was no negligence of the em-

4 .

ployer which played any part, however small, in the

death which is the subject matter of this suit, and

that the sole proximate cause of the accident and

the death of Grady Robinson was the conduct of the

County employees. Plaintiff conceded in the Texas

courts that the jury’s anaes were suppor ted be: the

evidence.

‘The Texas Court of Civil Appeals in ‘effect held

‘that the proofs justified with reason the jury’s con-

clusion that there was no employer negligence. which

played a part, however small, in’ producing the death

of Grady Robinson.

The Court of Civil Appeals further held that the

failure of the Trial Court to submit. additional

grounds ot negligence “did not deprive the plaintiff _

of any substantive rights” and that there was no er- -

ror in the ease which “probably did cause the rendi-

tion of an improper judgment in the case.”’ The plain-

tiff applied for writ of error to the Texas Supreme

Court, which was refused, and her motion for rehear-

ing was overruled. Under the heading, “On the

_ Merits,” there is a more detailed statement of. the

jury a

J URISDICTION

Jurisdiction is denied. It i is conceded that this is an

FELA case and that both the. Trial Court and the

Court of Civil) Appeals recognized it as, such.’ It is

recognized that plaintiff's petition was. filed in time —

from a final judgment of a, state’ court. Plaintiff had

a jury trial in very favorable atmosphere and got a

5

jury verdict that tor husband's death was solely

~ caused by Tarrant County and that there was no

negligence on the part of the railroad. We deny that

- the affirmance of such a judgment of the Trial Court

gives the United States Supreme Court jurisdiction. |

Daulton vs. Southern Pac. Co., 352 U.S. 1005,

1 L.Ed. 2d 549, 77 S.Ct. 564;

Burch vs. &. Reading Co., 353 U.S. 965, 1 L. Ed. 2d

914, 77 S.Ct. 1049;

bvtabhiy rs, Pennsylvania R. Co., 358 U.S

865, 3 L.Ed..2d 97, 79 S.Ct. 94.

Where the plaintiff has had a fair chance to get |

~ at the defendant under the Court's charge, failure to

submit additional issues or grounds creates no fed-

eral question.

Houston. Oil Co. vs: Goodrich, 245. U.S- 440, .

62 L.Ed. 385, 38 S.Ct. 140.

In addition, the plaintiff was not entitled to the

particular requested-issues under Texas practice, and

certainly a Texas court’s application of Texas rules

of procedure to a Texas state court promeding creates

no federal question. .

Black vs. Cutter Laboratories, 351 U.S. 292,

100 L.Ed. 1188, 76 S.Ct. 824.

Lastly, petitioner predicates jurisdiction solely on

28 U. S. C., Section 1254(3), (see petition for writ

of error, page 3). This article (28 U. S. C., Section

1254) applies solely to the Federal Circuit Court of

6

Appeals. It gives no basis for jurisdiction of a peti-

tion for certiorari addressed to a state court.

‘It is, therefore, respectfully submitted that cer-

tiorari should be denied, or in the alternative the

petition should be dismissed. :

QUESTIONS PRESENTED

1. Jurisdiction as above act out.

2. Whether‘a clear jury verdict for the defendant

is accorded the same finality as a clear jury verdict

‘for the plaintiff in an FELA case.

| 3. Whether a.clear jury verdict for the defendant

-. in an FELA case will be set aside for unsubstantial

alleged procedural errors. :

4.°Whether a State court should reverse the trial

court’s judgment in an FELA case based on a jury

verdict, for claimed. errors which,: if they existed, .

were waived under state practice, or for asserted .er-

rors which do not constitute reversible error undér

state practice.

CONSTITUTIONAL QUESTION ©

In the Petition for Certiorari (page. 4), plaintiff

makes the bland assertion that the Seventh Amend-

- ment to the Constitution of thé United States guaran-

tees trial by jury in state courts. Since ‘the. plaintiff

had a jury trial, and since the jury-had twenty-seven

different special issues submitted to it. which it an-

swered, the question of whether the Seventh’ Amend-

ment .loes, or does not apply to state court actions is

‘

utterly immaterial. If it ‘were not. immaterial, .it

would raise some very interesting theoretical ques-

tions. For example, since the specific language of the

Seventh Amendment says it applies only to the fed-

‘eral courts, and: the Supreme Couit*of the United

States: has uniformly so held; can Congress by enact-

ment of a federal statute (the FELA in this case)

amend the: Constitution and- make it apply to state

courts? If the Seventh Amendment anplies to this

case, then there having been a jury trial in this case,

and the jury having returned a clear verdict for the

‘defendant, does the . Constitution - guarantee that

- ‘neither the Texas Court of Civil Appeals nor the

Supreme Court of the United States will re-examine

‘same other “than aceording to the rules of the com-

mon law’? If the-Seventh: Amendment is. applicable

to this case, wouldn't it automatically require the

denial of the Petition for Certiorari in view of the

jury verdict for the defendant? Since there was a

jury trial, all.of thése questions are immaterial, and

since the petitioner has made no attempt to weave the

Seventh Amendment into the brief, and only makes a’

bald assertion, we need make no further statement.

ON THE MERITS

The Court of Civil Appeals opinion contains a

statement of the pleadings of the parties and a sum-

mary of. the-evidence. The Santa Fe’s. brief in, the

Court of Civil Appeals, pages 2-22, contains a de-

tailed statement of the evidence with references to the

record. In view of the factual statement in the Court ~

of Civil Appeals, and in view of the fact that the

> .

a

plaintiff in the Trial Court has not and does not now

question the sufficiency of the evidence to support the

jury’s findings, we do not believe that a detailed

statement of the evidence i is essential in this brief.

- °

We do think, how ever, that this Court, in view of

_ its numerous holdings that the jury is the final arbi-

ter in this type of case, would be interested in the

actual jury verdict. The case was submitted to the

jury (Tr. p. 64):in the standard Texas procedure of

special issues with definitions of ordinary care, negli-

gence, proximate cause, proper lookout and sole proxi-

mate cause. The plaintiffs did not object to any of the

issues or definitions.

The jury found (beginning Tr. p. 67):

“SPECIAL ISSUE NO. -1- .

“Do you find from a preponderance of the

evidence that @he defendant railway company

was negligent in authorizing: and directing its

engineers to operate locomotives at the point of

.the collision here involved at rates of speed as’

- high as 84 miles per hour?

“Answer ‘yes’ or ‘no.’

_ “Answer: “No.”

Special Issue No. 2, ous the proximate cause

issue, was not answered.

“SPECIAL ISSUE. NO. 3.

- “Do you find from a preponderance of the

evidence that the failure of the defendant. to

mark said railway crossing in question in some

‘manner so as to warn the public of the fact

that trains travelling across the same travelled -

¢

: 7

up to speeds as high as 84 miles an hour, was

negligence? : » .

“Answer ‘yes’ or ‘no.’

“Answer: No.”

Special Issue No. 4 was ‘a proximate, cause issue

--and was not answered. — _

“SPECIAL ISSUE NO. 5.

“Do you find from a preponderance of the

- evidence that the defendant’s engineer was negli-

gent in operating the locomotive at a rate of:

speed of 84 miles per hour at the time of the

collision here involved?

“Answer ‘yes’ or ‘no.’

“Answer: No.”

Special Issue No. 6 was a proximate cause issue .

and was not answered. :

“SPECIAL ISSUE NO. 7. 7

- ..“Do you find from a’ preponderance of the

evidence that the defendant’s engineer as he.

approached the crossing here involved failed to

keep a proper lookout, as that term has been

defined for you herein, for vehicles using the

crossing on the occasion here involved?

“Answer ‘yes’ or ‘no.’

“Answer: No.”

Special Issue No. 8 was a proximate cause issue

and was not answered. |

“SPECIAL ISSUE NO. 9.

“Do you find from a preponderance of -the

evidence that the defendant’s engineer upon the .

10

; , ; . i

occasion ‘in question failed to timely sound the

whistle on the locomotive he was operating as he

approached the crossing in question?

“By. the term ‘timely sound the. whistle’ as

used in this question is meant the sounding of

. the whistle at such time and-distance prior ‘to

the time the train went over the crossing here

involved as an ordinarily prudent person would —

have. sounded: the same under the. same or sim-

ilar circumstances. — :

“Answer ‘yes’ or ‘no.’

“Answer: No.”

‘Special Issue No. 10 Was a proximate cause’ issue

and was not answered.

“SPECIAL ISSUE NO. 11. >

“Do you find from:a preponderance of the

evidence that the defendant’s engineer upon the

occasion in. question failed to timely apply the

brakes on the-train he was operating .as he ap-

proached the crossing in question?

“By the term ‘timely. apply tHe brakes’ as_

used in this question is meant the applying of

the brakes on the train at such timé and) distance

prior to the time the train w ent’ over the cross-

ing here involved as an‘ ordinarily prudent’ per-

son would have applied the same under the.same

or similar circumstances. AY pears

“Answer ‘yes’ or ‘no.’ sis

“Answer: No.” j A :"

Special Issue No. .12 was ‘a proximate, cause issue

and Was not answered.

Special Issues 13, 14,15 sid 16 related to damages.

‘11

Special Issues 17, 18, 19, 20 and 21 related to cu-

»

tributory negligence on the part of Grady Robinson.

-\hich were answered in the negative.

“SPECIAL ISSUE NO: 22. © | 2

“Do you find from a preponderance of the >

evidence that the collision in question was not

an unavoidable accident (as that term is definéd

for you below), as far as Grady Robinson and °

the Santa Fe. Railway Company were concerned”

“You 4re instructed that the term ‘unavoid-

able accident’ as used in the above question

means an event which occurs without any .neg-

. _ ligence, if any, on the part of the Santa Fe

. Railway Company, acting by and through its |

agents, servants and .employees (other than.

Grady Robinson), and, without any negligence

on the part of Grady Robinson, which proxi-

mately contributed thereto. .

“You will answer, ‘It was the result of an

-unavoidable accident,’ or ‘It- was not. the result ’

of an unavoidable accident,’ as you may find.

“Answer: It was the result of ‘an unavoic-

able accident.” .

€

‘

Special Issue No. 23: This was a reduction of dam-

_ ages, which was Bot answered, because no negligence

was found. pe :

“SPECIAL ISSUE NO. 24.

“Do you find from a preponderance of the

evidence that the driver of the county truck or

the occasion here in question failed to maintair

a‘proper lookout (as that term is defined fo:

you in this charge) for approaching trains*

’ “Vou will answer ‘He did fail’ or ‘He did nor

ae

fail,’ as you! may tind. —

-“Answer? He did fail:”’ .

“SPECIAL ISSUE NO. 25. R

‘: “If you have answered Special Issue ‘No. 24 |

above ‘He did fail* and only in that event, then _

answer. this question: _ |

~ .“Do you find from a preponderance of. the

A es evidence that such. failure, if, any "you have.

— found, as inquired about in special issue No. 24

above, was the sole pr super cause, - the death

of Grady Robinson ?: :

“Answer ‘yes’ or ‘no.’ o

a “Answer: Yes,” - “:

_& “spECIAL ISSUE NO. 36. |

~ # .“Do you find from 4 | preponderance | of the

evidence that the driver ‘of the truck failed_to

properly listen for approaching trains?

“By the term “proper! _listen,” as used in the

above question is meant the kind of listening

that.a person of ordinary prudence would have

done under the same or similar. circumstances. (

“Answer ‘He did fail* or ‘he. did not fail.’

“Answer: He did fail.” °°

“SPECIAL ISSUE NO. 27. .

. “If you have answered : special issue No.’ 26

above. ‘He did. fail,’ and only is that event, then

answer this question:

“Do you find: from a preponderance of the .

evidence that such failure, if any you have .

found, as inquired about in special issue No. 26 -

~ _abové, was the sole proximate cause of the death

- ~. +* of Grady Robinson?

“Answer ‘yes’ or ‘no.’

“Answer: ‘No.”

afl

“~

, bor /

“SPECIAL ‘ISSUE NO! 28. | : at

“Do you find from a preponderance of the

evidence that the driving of the asphalt truck on

the track on* the occasion in question was not

the sole proximate cause of.the death of Grady

Robinson?) ete aed

“Answer ‘It-was the sole proximate cause’ or

‘It’ was not the sole proximate cause.’ .

‘Answer: It was the sole proximate cause.”

¢

The only special issue which. would require any

explanation foxy a non-Texas jurist is Special Issue

No. 22, vhs called the unavoidable accident issue

but actually is, as the definition indicates, the sub-

mission of thesbroad issue of whether there was any

- negligence (whether specified i the preceding issues

or not) on the part of the railroad or the employee

which caused the accident. The jury found that there

was no negligence on the part of either the railroad .

or the employee -by finding it was an unavoidable

accident. : =

This explanation has been-made by ‘the Texas

_eourts frequently. Applicable thereto, we take the

following quotation from Herrera vs. Zinberg (Civ.

App.—Writ refused, N.R.E.) ‘287 S.W. 2d 695, quot-

ing from page 696: Sy “Sigs,

>\“The definition of unavoidable. accident is .

‘road. It embraces all.and every negligence of

' - both plaintiff and defendants and nowhere limits

the ‘negligence and proximate cause to those

things specially inquired about in the charge. —

The. inquiry about unavoidable accident, as de-

fined, turned the jury completely loose to deter-

“«

14

‘aie from all the evidence and the -total situa-

tion, whether the plaintiff. or the defendants or

both or neither did or omitted to do anything

‘amounting to negligence.”

The same holding was made in a Jones Act case

-in which an injured seaman who had the verdict of

the jury against him sought reversal on the failure

to submit additiénal issues. We quote from Guthric

vs. Sinclair Refining Co. (Civ.App.-Writ refused,

-.. N.R.E.) 320 S.W. 2d 396 (certiorari denied Novem- :

- ber 9, 1959, No. 365) quoting from page 403:

“Moreover, the jury exonerated both appellant

and appellee of all negligence in-finding that the

= occurrence in question was the result of'an un- |

avoidable accident. The jury was instructed in:

connection with the submission of the issue as to

whether the accident was or was not an. unavoid-

able accident, that

‘By the term “unavoidable accident”, as

used herein, is meant the inforeseen and un-

anticipated’ happening of an event occurring

without: either the Defendant or the Plaintiff

being guilty of negligence ‘that proximately

caused the accident in question, if any.’

“The finding of the jury negated negligence in

all particulars.”

Therefore, the plaintiff in this case not only had‘a

' submission of evéry specific ground of negligence that -

’ the fertile mind of the plaintiff's. lawyer and the trial

judge could conceive, but the plaintiff had an op-

' portunity to have the jury make a finding of negli-

gence on the part of the railroad even .if -unspecified

~

15 : ;

in the. charge or unspecified in the pleadings. The

plaintiff had a shotgun | issue then, as well as the’

specific issues.

. There is no way to construe the opinions of this ..

Court in the last.ten years other than as saying and -

holding that the jury verdict in FELA cases must.

be accorded finality. For example, we. refer to:

Rogers vs. Missouri Pacific R. Co., 352 U.S.

' §Q0, 1 L.Ed. 2d 493, 77 S.Ct. 443;

Coray vs. Southern Pacific Co., 335 U.S. 520,

93 L.Ed. 208, 69 S.Ct. 275;

Tiller.vs. Atlantic Coast Line R. Co., 318 U. S.

_ 54, 87 L.Ed. 610, 63 S.Ct, 444;

- Lavender vs. Kurn; 327 U.S. 645, 90 L.Ed.

916, 66 S.Ct. 740; |

Webb vs. Illinois Central R. Co., 352 US. 512,

~ 1 L.Ed. 2d 503, 77 S.Ct. 451;

_ Wilkerson vs. McCarthy, 336 U.S. 53, 93 L.Ed.

497, 69 S.Ct. 413. |

.

— From the last case we take the following: quotation

(quoting 336 U.S. p. 61):

“But the~issue of . negligence is for juries to

determine according to: their finding of whether —

- an employer’s conduct measures up to what a.

reasonable and prudent person would have done

under the same circumstances.”

In this ¢ase the Court defines’ negligence as the

failure to lo what an ordinarily prudent person

would have done under the same or similar circum-

stances. Therefore, we say the jury verdict ‘for the

re)

. stances applied the same rules and the same stand-

16

defendant in this case is entitled to the same finality |

as this Court has accorded to verdigts in favor of

plaintiffs. This is particularly true since the plain-

tiff in this case does not attack the sufficiency of the

evidence to support the jury’s findings.

. Plaintiff’s application’ for certiorari is' predicated

upon alleged error in failing to submit additional

- grounds of negligence by submitting additional re-

. quested special issues.

This Court has further said many times that ‘ae.

' finality of a jury verdict in an FELA case should not

be disturbed for unsubstantial errors in procedure.

Arnold vs. Panhandle & Santa Fe Ry. Co.,

353 U.S. 360, 1 L.Ed. 889, 77 S.Ct. 840; |

Rogers v. Missouri Pacific R. Co., 352 USS..

500, 1 L.Ed. 2d 493, 77 S.Ct. 443; ~

Webb vs. Illinois Central R. Co., 352 U.S. 512; °

1 L.Ed. 503, 77 S.Ct. 809. a

Certainly, if the jury verdict’ had been for the

plaintiff in this case and the defendant, Santa Fe,

had presented the same error, or the same type of

error, seeking a reversal and new trial, the Supreme

Court of the United States would certainly not even °

consider a Petition for Certiorari on such grounds

seriously, nor if it granted certiorari,. would it re-

verse and remand on such grounds. The Texas Courts,

contrary to petitioner’s statements, have in many in-

ards which were applied in this case to affirm the

trial court’s judgment to jury verdicts for the plain- @

17. pin

tiff from: which ‘the defendant siaiesieiie Even where

thé Texas. Courts have found procedural errgfs in a

\ plaintiff’s jury~ verdict, reversible errors Was. been

denied. See for example the FELA case of:

‘Thompson vs. Robbins, (Tex.8.Ct, 304 S.W. 2

et

We say, therefore, that grounds for certiorari are

not shown in this case. We say that positively and.

unequivocally without the necessity of the analysis

(which is made hereafter) showing the plaintiff’s ad-

_ ditional issues ‘were encompassed in the issues sub-

mitted to the jury, and that under Texas practice

even if plaintiff were otherwise entitled to such is-

sues (which she was not), she has failed to show

reversible error under such Texas practice. To con-

clude this portion, we merely paraphrase the holding

of the Court of Civil Appeals in this case by saying:

“The Trial Court did not.deprive the plaintiff

of any. substantive rights, and therefore there

was no error which probably caused the: rendi-

_ tion of an improper judgment in. the case.”

)

% ‘18 +

NO REVERSIBLE ERROR UNDER

TEXAS PRACTICE

Should this Court -make a detailed study of the

record in this case, it will diseover quite promptly

that there actually was only one ground of negligence .

“on-the-part of the railroad in this case. That was the

speed of the train. The train was allowed to run’ 90-

miles an hour and was actually. running 84 miles an

‘hour at this particular location. The plaintiff had

two classes of negligence. One was the negligence of

the engineer Estes, all of which claims were sub-.

mitted to the jury and answered adversely to the

plaintiff. Second were the claims of negligence on the. -—

~ part of the railroad company in various respects. This .

second class of negligence on the part of the railroad

‘company all are predicated, on the speed of the train.

Besides the particular allegations that the railroad

was negligent in permitting the:train to run so fast

.‘at this location or over this crossing, the other claims

are all based on the speed of the train, too. No argu-

. ment plaintiff mas as to negligence on the part of

the railroad (other than the negligence of the engi-

neer) is based on anything other than speed. Merely

~ to briefly illustrate, why does piaintiff say that her

husband did not have a safe place to work? Because

the train ran so fast. Why does the plaintiff say that’

this wide open country crossing, which was seldom

used and which had. never had a prior accident,

needed additional warnings? Because the train ran.

so fast. Why does - plaintiff contend that a louder

whistle was needed? ‘Because the train ran so fast.

Why does the plaintiff contend that more braking

ial |

power ought to have been on the train? Because the

train ran so fast. This could go through, every con-.

tention plaintiff makes, and if the same question. is

\

« oat

: 20”

‘We fealize that this Court does not reach questions

such as-that above presented, but the plaintiff got so

_ much the better of the Trial Court’s rulings-and so -—

much the better of the submission to the jury, that —

human nature being what it is, we’ cannot fail to -

resent any contention or implication that the Trial

Court dealt with the plaintiff unfairly. s

ss Repeating again, the. jury ‘verdict: which we bine.

heretofore quoted, was clearly. one for the deferfdant,

and was a finding, both specifically and in general,

of no negligence on the part of the Railroad Company,

_ and a finding’ that the sole cause of the death of

Robinson was the conduct of the County employees.

The question presented is not the same as though the -

Trial Court had instructed a verdict for the defend-

,ant. The question before the Court of Civil Appeals”

was whether, under the applicable rules of procedure, °

‘the claimed-errors existed, and if they exist, whether

they required the reversal for.a new trial. We -quote

from the Court. of Civil Appeals opinion, 325 S. W. 2d_

. 482, at page 435: “be

“(2) Like other cases ‘tried i in the state courts, -

F. E: L. A. cases. will not be reversed. unless the

error complained of be of such nature that it

_ “probably did cause the rendition of an improper.

_judgment in the case,” as contemplated by Rules

_ 434 and 503, Texas Rules of Civil Procedure.

Thompson v. Robbins, Tex., 304 S.W, 2d 111.

(3) We do not intend to hold, and do not hold,

that it is improper in a F. E. L. A. case to sub-

mit‘a general issue on. unsafe place to work and

special issues on specific acts or omissions. We

or Sy, FA

-, y ae

merely hold, under the whole record in the case

before us, that the trial court/did not deprive

plaintiff of any substantive yights by refusing

‘\\. to submit the: general issue’ of: unsdfe place to —

_ work, having concluded that the special issues

~~ properly and. adequately’ presented all plaintiff's

grounds on which. there was evidence of unsafe"

place to work to the jury.” ‘

¥

_ \e/ Ld ; ; ae

_ Now, getting ‘to the Texas procedural points, we

- will ‘také them’ briefly-and-with: only references to

one or two of the applicable authorities in the inter-

est of brevity. 4 ,

‘

*

First, the’plaintiff alleged many grounds of negli- -

gence (e,f., competency of the engineer, additional

brakés, ‘additional ‘whistles, failure to issue slow or-

. ters/ete.). Even if«there were evidence to support. .

» such issues, the failure of the plaintiff to request the

submission of-such issues was a waiver thereof, under

Texas Rules of Civil Procedure, Rule 279 (quoted in

_ full in the appendix hereto). See, for example:

- 41-B Tex: Jur. Secs. 429, 431; fe

-_T..& N.O. R. Co. vs, Sturgeon, 142 Tex. 222,

177 S.W, 2d°264;- , |

Johnson vs. Miller, 142 Tex. 228, 177 S.W. 2d

249; eo

Hicks vs. Harper, 134, Tex. 89, 132 S.W. 2d

579; 3

_ McCarver vs. City of Corpus Christi, 155 Tex. |

153, 284 S.W. 2d 142.

_. Next, under the same Texas Riles of Civil Proce-

dure (No.°279, quoted in the appendix), it is never

*

S$ .,

os J

‘22

3

error to fail to submit the same basic issue twice. In

other words, no party (plaintiff or defendant) is en- -

titled: to have different phases of the same issue sub-:

mitted. ;

.41-B Téx. Jur. Sec. 423, p. 535;

» %T.&N.O. R.Co. vs. Sturgeon, ‘supra; |

'. . Solgaard vs. T. &-N.O. R..Co., 149 Tex. 181,

_— 229 S.W. 2d 777; :

= ¢ , Smith & Conklin Bros. vs. Griffith, 153 Tex.

341, 268 -S.W. 2d 124. :

Plaintiff only - complains of error by the Trial

Court in failing to submit the general issue of un-

safe place to work (see petition for. certiorari, p. 3

& 4 and p. 11-19). 3

As we have heretofore pointed out (this brief; p.

14), the submission of Special Issue No. 22, there

quoted, was a submission to the jury of: the question

- of whether there was any negligence of any kind on

the part of either the railroad company or Rohbinson..

The jury answered no. Had the jury. been of. the

opinion that there was any negligence on the part of

the railroad, whether included. in the special issues

submitted or not, they would have answered the fore-

going issue to the effect that there was. negligence.

They did not need to specify; they did not need to

limit it to safe piace to work, additional warnings,

or incompetent engineer. They would have just-found

that there was negligence; but they did fot. There-

’ fore, the plaintiff had a submission of ‘safe place to

work (and every other ground of negligence sup- _

23

ported by either the pleadings or the onibinin on

the part of the railroad company, and the. jury’ an-

swered no. (See Guthrie vs. Sinclair Refining Co.,

supra, in which this very point was decided in a Jones

Act case, and-in which certiorari was denied by this

Court on November 9, 1959.) /

Next, plaintiff cannot claim rever sible error, under”

Rule 279, unless the requested issue is in substantial-

ly correct ‘form. See: \

41-B Tez. Jur., Sec. 425, p. 543;

Harris vs. Lestie, 128 Tex. 81, 96 S.W. 2d

276;

Edmondson vs. Cavell, (Ft. Worth Cetin:

Dism., Judgm. Cor.) 134 S.W. 2d 378;

Anderson vs. Broome (No writ history), 233

S.W. 2d 901;

Texas Gen. Ins. vs. McNeill (No writ history)

_* 261 S.W. 2d 378; —

Mitchell vs. Mills (Wr. N.R.E.), 264 S.w. 2d

. NI;

Cruse vs: Daniels’ (Wr N: R.E.), 293. SW. od"

616;

Sunset Motor Lines vs.. _Blastngame (Wr. eee

dism.), 245 S. i: 288.

_. This qnlle grecheies any. error on plaintiff’s_re-

wuested shotgun issue of safe place to work, because

_under Texas practice the. issues should be confined

to the specific acts or omissions-of negligence alleged.

Northeast Texas Motor Lines vs. Hodges, 138° -

Tex. 280, 158.S.W. 2d 487; -

~¢

| ‘Triangle Cab Co. us. Taylor, M4 Tex 568, 192

S:W: 2d 143;

_ Sproles vs. Rosen, 126 Tex. 51, 84 S.W.. 2d

1001;

Thompson. vs. Robbins, 157 Tex. 463, 304

S.W. 2d 111; _

Texas Employers’ Ins. Co: vs. Frankum,. 148

Tex. 95, 220 S.W. 2d 449.

| Relating specifically to “safe: place to work,”

refer the Court to-41-B Tex. Jur. Sec. 452 p: 583:

’ “The court should not ‘submit in a single issue

the defendant’s negligence generally in failing |

to furnish a safe place to work, but should sub-

mit separately the issue as to the existence or ,

non-existence of each of the various defects in.

the premises which it is claimed made the pre-

mises‘ unsafe.”

- also:

- Ginther -vs. Southwest Workover. Co., (Civ.

App.—no writ — 286 S.W. 2d 291, p.

293 ; oo

Gulf States vs. Dillon, (Civ. App.—no writ -

hist.) 112 S.W. 2d 752, p. 754;

McDonald vs. Joske’s (Civ.App. — no writ

aciate 268 S.W. 2d 475..

od

Therefore, ander Texas practice plaintiff in this»

case, if there were error, has failed to preserve it, has .

waived it, and under Texas practice she is not en-

_ titled to reversal for these sane matters.

Dow, :* 95°

Lastly, while, it is. totally unnecessary in reply to

4 petition for certiorari, we do not‘want any brief

- filed which would even impliedly admit that there was -

any evidence to support the submission of the addition- —

al grounds of negligence. The Court submitted many |

issues of negligence which were ‘not supported by the, -

evidence, and certainly plaintiff got more issues than .

she wai entitled to. The plain facts of this case are that

~ two good men, Engineer Estes and’Fireman Robinson,

were killed because of the County employees’ gross

negligence. They violated Article 6701d of the Re-

vised Civil Statutes, and they violated every- rule of

common prudence. The County furnished no one-to

flag or help.or warn them, ‘and they made no éffort \.

to prevent the accident. Under the opinion of the ma- ) ,

jority. in Inman vs. Baltimore & Ohio R. Co., No. 36.

decided December 14, 1959, appearing in 4 L.Ed. 2d

198 advance sheet, the Trial Court in this cause -

should have instructed a verdict for the defendant ~

* beeause Robinson’ was killed plainly and obviously by

the acts of the County employees, ‘not. only the truck

driver but the supervisor employees who failed to

warn the railroad and ‘failed to station anyone there

“to help them. The Trial Co#t, however; submitted

' this case to the jury just as the minority in Inman

wanted it ‘done, and the’ jury found that the -sole

cause of Robinson’s death was the conduet of these

County employees. ‘The jury verdict in thi case is the

same as in McDonald .vs. Pennsylvan R: Co. (8rd°

Cir.) 210 F.2d 524, and certainly in light of the jury

er we should be justified in saying, as the Third

Circuit did in that ease, that Robinson was killed not

fe

|

|

|

.)

~

' the County employees.

26

by the railroad but by the senselessindifference of

: SUMMARY —

: The respondent, Gulf, Colorado and Santa Fe Rail-

way Company, says that a’clean jury verdict in fayor

of, the raitroad company in an FELA case creates

no federal questiori.. The jury was right, the Trial

Court was right, and the Texas Court of Cl

peals was right, for many reasons not included in this

reply. Summarizing the reasons here presented for a:

‘denial of certiorari:

(a) . Jurisdiction is denied, because a jury verdict

for the defendant in an FELA case creates no federal

_question, and neither the Trial Court nor the Court of

Civil Appeals deprived the plaintiff of any ‘substan-

tive federal right. Where the plaintiff. wale op-.

portunities to obtain a finding of negligefice on the

part of: the railroad, and the jury ‘answered each of

“such questions in the negative, failure to submit addi-

tional’ grounds presents no federal question.

(6). Jury verdicts in. FELA cases, whether for’

the plaintiff or for the’ defendant, are not to be set

aside by appellate courts on unsubstantial procedural

points.

(c) On'the merits, the plaintiff got everything

she was entitled to, and more. She had submitted to

the jury six particular, grounds of negligence on the °

part of the. defendant, and the jury answered all of

them no. She had a shotgun issue of whether there

27 =<

\"

was any negligence on the part of the defendant

causing the accident, and the jury answered that no.

The evidence did not raise any ground of negligence

- other than. the specific ones submitted, but if it did,

she got her general submission, too. ..

(d) Plaintiff, having elected to file this suit in _

the State tourt, was bound by those rules ‘of State

practice which apply equally to all litigants. If there

were any error (which there was not) in failing to”

submit additional issues, plaintiff. hep failed to pre-

serve reversible error under Texas applicable rules -

of, practice. ms Tes |

CONCLUSION

_- Plaintiffs hysband was killed ig’ a horrible acci- .

dent while Xfireman on the defendant's passenger S

train. After a more than fair jury trial, judgment

was rendered against the plaintiff and in Yaoi of the

Santa Fe Railway, because the jury found that there

was no negligence whatsoever on the part of the rail-

way company and that the sole cause of the death of —

plaintiff’s husband was the. conduct of the County

employees.; We respectfully submit that such as case

is not one for certiorari jurisdiction. We further sub-

mit that this Court, on a review of the record, would

reach the same conclusion that the jury did, the Trial

Court did, and. that the Texas Court of Civil Appeals :

did.

y 4

, i . P ; ‘

28

WHEREFORE, premises considered, the’ respond-

ent prays that certiorari be denied or, dismissed.

poe sgbmitted,

“Luther i oo? ae.

é c/o HUDSON, KELTNER, JORDAN’ |

& CUNNINGHAM

1313 Continental Life Building -

. Fort Worth 2, Texas _

I certify that a copy of e fo oing respondent’s

_-reply ti for writ o i i

. to petitioner’s attorneys, as follows: to Akin & Vial,

1405 Mercantile Securities Building, Dallas 1, Texas;

and to Cantey, Hanger, Johnson, Scarborough & ©

Gooch, 1500 Sinclair a9 Fé#t Worth 2, Texas.

5 ee a ae, z. MAS.

aw Of Counsel ” a

‘.

29

APPENDIX

Vernon’s Annotated Texas Rules of Civil Procedure,

Rule 279: , |

“Rule 279. Submission of. Issues

a

“When the court submits a case upon specia] issues,

he shall submit the’ controlling issues made by the

written pleadings and the evidence, ‘and, except in

treaspass to try title, statutory. partition proceedings

and other special proceedings in which the pleadings

are specially defined by statutes or procedural rules,

a party shall not be entitled to an affirmative sub-

mission of any issue in his behalf..where such issue

is raised only by a general denial and not by an

affirmative written pleading on his part, Nothing

herein shall change the burden of proof from what

it would have been under & general denial. Where the

court has fairly submitted the, controlling issues

raised by such pleading and the evidence, the case

shall not be reversed because of the failure to submit

- other and‘ various phases or different shades of the

same issue. Failure to submit an issue shall not be

deemed a ground for reversal of the judgment, un-

less its submission, in substantially correct wording,

has been requested in writing and tendered by the

party complaining of the judgment; provided, how-

ever, that: objection to such failure shall suffice in

such respect if the issue is one relied upon by the

opposing party. Failure to submit a definition or ex-.

planatory instruction shall not be deemed a ground

for reversal of the judgment unless a substantially

‘correct definition or explanatory instruction has been

requested in writing and tendered by the party com-

plaining of the judgment.

“Upon appeal all independent grounds of recovefy

or of defense not conclusively established under the

evidence and upon which no issue is given or re

quested shall be deemed as waived; but where such »

ground of recovery or of defense consists of more -

than one issue, if one or’more of the issues necessary

to sustain such ground of recovery or of defense, and

necessarily referable thereto, are submitted to -and:

answered by the jury, and one or more of such issues ,

are omitted, without such request, or objection, and

there is evidence to support a finding thereon, the

trial court, at the request of either party, may after

notice and hearing and at any time before the judg-

ment is rendered, make. and file written findings on

such omitted issue or issues in support of the judg-

ment, but if no such written findings aye made, such

- omitted issue or issues shall be deemed as found by

the court in such manner as to support the judgment. —

A claim that the evidence was insufficient to warrant

- the submission of any issue may be made for the first

time after verdict, regardless of whether the submis-

sion of such issue was requested by the complaining

party.”