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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Reply to Petition for
- **Published:** January 1, 1960
- **Citation:** 362 U.S. 919

## Text

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.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0200%3A3. Public record. Not legal advice.