INMAN v. BALTIMORE & OHIO R. CO.

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Argument of Raymond J. Mcgowan

Chief Justice Earl Warren: Number 36, Carl C.Inman, Petitioner, versus Baltimore & Ohio Railroad.

Mr. McGowan.

Mr. Raymond J. Mcgowan: Members of the Supreme Court, this is a negligence case under the Federal Employers' Liability Act and the action was tried in Summit County town police court.

A verdict was rendered for the plaintiff.

A general verdict was rendered for the plaintiff and in addition to the general verdict, there were two interrogatories submitted by the railroad and the first was, “Do you find the defendant was negligent?”

The answer by the jury to that special interrogatory was, “Yes, in part.”

And the second interrogatory was, “In what -- if your answer to interrogatory number one is in the affirmative, then in what respect do you find the railroad was negligent?”

And the answer was, “In failing to provide enough protection.”

The Court rendered a judgment on the verdict, the town police court did and the railroad appealed to the Court of Appeals and the Court of Appeals reversed and rendered a final judgment, took the judgment away from the petitioner, rendered the final judgment in favor of the railroad.

This accident occurred at a railroad crossing.

The plaintiff was a crossing watch and he was in the performance of his duty when he was struck by an automobile at the crossing while the train was passing over the crossing.

It -- it was the most unusual crossing in that Tallmadge Avenue is a main highway on Akron, extending in an easterly and westerly direction and Home Avenue is -- is a highway extending in a north-easterly and south-westerly direction.

They intersect one another and the railroad tracks of the defendant or the respondent, three of them, intersect both highways right in the middle of the intersection.

So that we -- we have a situation there where Home Avenue intersects Tallmadge Avenue, west of the tracks and it also intersects Tallmadge Avenue, east of the tracks.

There are actually two intersections there, thus providing a cutoff for automobiles that are proceeding in a northerly direction on Home Avenue into -- into Tallmadge Avenue.

On this particular night, there was a train, a train that was travelling in an easterly direction north geographically and it was the watchman's duty to take his position on the westerly side of the railroad track and face the train for the purpose of watching for another train which was due out of Ravenna, Ohio and which had left Ravenna, Ohio by 15 minutes before that time, and in order to not clear the crossing before this other train arrived in the event it did arrive before the train which is on the crossing passed.

While he was standing there facing the train, the train that was passing was -- the caboose was going over the crossing and he took a step backward and went to turn, when he was struck by an automobile, which was being driven in a northerly direction on Home Avenue and the -- the driver was making a left hand turn on this cutoff which is located west of the railroad tracks, struck the watchman, a 67-year old man and seriously injured him.

And he -- we sued the railroad -- the railroad was sued.

The driver sped on.

He was a hips -- hit-skip driver.

Justice William J. Brennan: Mr. McGowan.

Mr. Raymond J. Mcgowan: Yes, Your Honor.

Justice William J. Brennan: Is there a passenger by --

Mr. Raymond J. Mcgowan: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Raymond J. Mcgowan: Your Honor, if you'll turn to page, in our record, page 234 Joint Exhibit A.

Now, the watchman, you'll see is Tallmadge Avenue there and right where the letter G is on the Tallmadge is where the watchman was facing to the -- to the east.

And Home Avenue, this automobile, down at the bottom, you'll see Home Avenue there, he was making a left hand turn into Tallmadge Avenue when he struck the watchman.

Now, if you'll notice Home Avenue intersects, there's an intersection west of the tracks and there's an intersection east of the track.

Now, what actually happened that night, this train was going in a northerly direction.

It was a freight train, about 80 cars and it had an engine.

And there were -- it was -- it was -- one witness testified, one of the defendant's witness testified that he pulled up on Home Avenue back of this car which had made that left turn, that that train took about 8 or 10 minutes between 5 and 10 minutes to cross.

And Home Avenue at that point, is on a downgrade.

The railroad tracks were on an upgrade as they go north.

Now, what actually happened after that train, after the caboose passed Home Avenue, the -- this driver would -- he was a second or third one in line, waiting there for the train, decided to get out of the line and he -- he made that left hand turn in the east Tallmadge Avenue --

Justice Potter Stewart: Didn't know, he didn't crossed the track?

Mr. Raymond J. Mcgowan: He did not cross the track, Your Honor.

Justice Potter Stewart: This 15-foot --

Mr. Raymond J. Mcgowan: That's right.

Justice Potter Stewart: (Inaudible)

Mr. Raymond J. Mcgowan: That 15-foot roadway, right.

And he strikes the watchman -- the -- on the blindside and he proceeds on.

Now, there was -- there was another -- there were a series of cars of course that were going east on Tallmadge Avenue waiting there, they had not started to move up.

They were all back.

They were west of that 15-foot strip at the time this accident occurred.

Now, then the Court of Appeals says --

Justice Charles E. Whittaker: Did you find out whether it was south of Tallmadge Avenue (Inaudible)

Mr. Raymond J. Mcgowan: No, Your Honor.

It happened right in the center of Tallmadge Avenue.

Yes, the plaintiff testified in all the test -- most all the testimony is that he was about two or three feet west of the -- of the most westerly track which would be right where the letter G is located on the word, “Tallmadge.”

Justice Charles E. Whittaker: (Inaudible)

Mr. Raymond J. Mcgowan: In the center of Tallmadge and he was facing east and this happened at night, it was about 10 minutes after 12 and it was a -- a winter night, cold and there was one street light, there was one street light.

Now, this joint exhibit here shows the street lights, there was one street light located about 25 or 30 feet west of the tracks, west of the intersection of Home Avenue on the -- on the south side.

There's a light pole there and the testimony is that it was about 25 or 30 feet from the tracks and there is a stop sign if -- there is a stop sign as you -- on Home Avenue just before you reach the tracks and there is another stop sign on Home Avenue before you get to Tallmadge Avenue on the northerly side of the tracks.

Now, there are no stop signs located on Home Avenue just where it intersects east Tallmadge Avenue.

There are no other signs there of any kind or character, warning that -- that the -- there was a man on duty and in addition to that, of course, this Home Avenue was not blocked in any manner at all, it was open and clear for anyone to make that last or that left turn, if they desire to do it.

And one of the witnesses that testified in the case said it was not a matter -- an uncommon matter for people that had been waiting there on Home Avenue in the line of traffic for a train to pass to -- where he described it was jump the gun and -- and make a left hand turn into east Tallmadge Avenue.

That has been done, he had seen it done a number of times before.

Well, the Court of Appeals rendered a final judgment in --

Justice Potter Stewart: I wonder if he could tell us on what page of the record that particular testimony appears.

That's a matter of some controversy (Inaudible)

Mr. Raymond J. Mcgowan: Yes, Your Honor.

Justice Potter Stewart: (Inaudible)

Mr. Raymond J. Mcgowan: It's on page 71 of the record and on page 68 of the record, Your Honor.

I'm sorry and you'll right in the middle of the page and I'll tell -- now, then this is a witness by the name of -- of Sam Bailey.

He was the first car that was parked on Tallmadge Avenue just west of the tracks.

“Now, then, would you just tell us what you say happen there that night while you were there?”

Answer, “I had stopped for the train and the train was just about to clear the crossing.

I believe the cab was coming over the crossing at the time.

This car, like a lot of them I seen there, jumping the gun, seeing the tail end of the train coming up, went around the cars, this car came around several cars, there -- that was on Home Avenue and turned west on Tallmadge Avenue and hit the watchman.”

“Did you see what position the watchman was in, which way he was facing?”

“I can't say on that.”

“Was he standing still or walking?”

“He was standing still when he was hit.”

Does that answer your -- I think that's the -- now, the Court of Appeals in -- in reversing and taking the judgment away, held that because this man violated traffic ordinances or traffic statutes that the defendant railroad was exculpated from any liability.

They said the -- the approximate cars of this accident and the injuries to this watchman was the negligence of a man by the name of Ball who was driving this car and that in view of the fact that he violated several traffic laws, that -- that exculpated the railroad company.

Now, Your Honors, in -- in the case -- have passed on this matter before and the case of Cahill, Cahill versus New Haven & Hartford Railroad, at -- in that case, which went up from one of the New York courts and the Court of Appeals reversed and held that the -- the negligence of the automobile driver, the violation of the ordinance exculpated the driver in a 2-to-1 opinion, this Court reversed and remanded and gave the verdict back in that case as I remember, gave the judgment back.

The -- the -- there were -- there was a minority opinion in the Court of Appeals and in the minority opinion, the Court stated that he -- he didn't think that as a -- the Court could say as a matter of law that had this man, this watchman then permitted, our claim here is that if this watchman had been permitted to face the traffic, face Home Avenue and face Tallmadge Avenue, he would have had an opportunity to step aside or take a step backwards and avoided being injured under these circumstances.

Now, the evidence in this case is that he had to face the train to watch for this other train which was coming due there from the opposite direction.

Although he did not testify to the fact, the conductor, a witness for the railroad, conductor on the train was -- which was passing over the crossing, testified that he also had the duty to watch for hot boxes, as that train was proceeding on the crossing.

Now, it's our claim that under the evidence in this case and there was positive testimony here of the fact that this -- that the petitioner had to face the train and was facing the train at the time this occurred, there was -- the testimony here, the pictures and the map shows the -- the extra hazardous condition of this particular crossing and specially in the night time.

We say that under all of those facts, this was a question for the jury as -- and those were all probative facts for the jury and certainly there were enough facts here to justify the inference that the railroad company failed to exercise ordinary care to furnish this man, this plaintiff or petitioner with a safe place to work.

I think I'll reserve the rest of my argument to Mr. Kelly.

Chief Justice Earl Warren: Mr. Kelly.

Argument of William A. Kelly

Mr. William A. Kelly: Mr. Chief Justice, Members of this Honorable Court.

At the very upset we wish to say that I think this case must be determined on the law as laid down by the Rogers case, with which you are all familiar.

Now, the test which was prescribed in that case which at the outset, I wish to quote if I may is simply this as stated by Mr. Justice Brennan, speaking of the FELA statute.

You there said and I quote, “Under this statute, the test of a jury case is simply where that approves justifiable reason, the inclusion that the employ of negligence played any part even the slightest, in producing the injury or death for which damages are sought.”

The time of the trial of this case, the Rogers case had not been decided.

However, upon appeal to the Court of Appeals and upon an appeal to the Supreme Court of Ohio, the Rogers case was unsuccessfully erred by counsel for petitioner.

It was and is our position and it's a very simple one that the facts of this case do not show or do not make a jury question under the test laid down in the Rogers case.

Justice Potter Stewart: Does the Court of Appeals opinions cite the Rogers case?

Mr. William A. Kelly: It does not, Your Honor.

But it was -- Rogers case was urged in the briefs in the Court of Appeals.

Now, why do we say that and what is the basis for that statement?

This is a long record, but from this record, we have attempted to call for this Court certain facts concerning which here can be no-dispute.

And those facts are related in perhaps, greater brevity in the opinion of the Court of Appeals and constitute or set out the basis for the opinion reached by the Court of Appeals in this case.

Let us look at the record.

This crossing was adequately equipped with a two-way signal system which indicated to the watchman, both inside and outside the watchman's shanty of the approach of any train from either direction.

This signal system went into operation when a train, a northbound train or an east bound train was pointed too hard in 15 feet east or west of the crossing.

The signal system went into play when a westbound train was approximately 2000 feet in the crossing.

This system had been in existence for many months and was well known to the petitioner.

The east and westbound tracks in this area were equipped with an automatic signal system, so that the block signal where east of the crossing, could be lighted when an eastbound train was 2250 feet -- 15 feet west of the crossing and the block signal west of the crossing could be -- would be lighted when a westbound train was 3450 feet east of the crossing.

Now the petitioner had full knowledge of the operation of that block six system -- signal system in that particular area.

The crossing was equipped with a four-way, highway automatic electric flashers which would activate when an eastbound train was 2000 feet from the crossing and which would seize to activate when that train was suddenly 5 feet east to the crossing.

Now on each street, there were statutory highway railroad crossing signs as prescribed by the law of Ohio, visible to travelers on the highway.

And the petitioner had knowledge of those highway signs.

Tallmadge Avenue was a statutory and municipal through or main highway clearly marked with properly erect statutory signs as required by the law of Ohio.

And under that law, it was a duty of travelers, before proceeding onto Tallmadge Avenue from the south or the north to bring the automobile to a stop and to yield the right of way to vehicles on Tallmadge Avenue.

Now, Mr. McGowan has mentioned the element of lighting, the record of this case by the admission of the petitioner himself shows that this crossing was well lighted and not only that, when he stood there, two or three feet west of the west of the westbound track, he stood within the full rays of an automobile whose headlights were directed east and were so apply -- were -- were signing right on the petitioner and the photographs and the plots show the location of the lights in this area.

The atmospheric and weather conditions were clear and dry.

Petitioner was an experienced watchman, he had worked at this crossing for about seven years and for the past three years he had worked at night from 11:00 p.m. to 6:00 a.m. -- 7:00 a.m.

Petitioner was in good health and in full possession of his mental and physical faculties.

Respondent has provided the petitioner with lanterns, fuses, whistles and other safety devices.

Petitioner was familiar with the train schedules and knew when and how to look for the approach of trains.

The train involved in this accident only incidentally, consisted of a steam engine, 80 gondola cars having a weight of -- having a height of seven to eight feet and was moving the speed of 12 to 18 miles per hour.

The duties which petitioner was performing at this time were no different than those which he had performed for many, many years.

Now, petitioner was standing as has been indicated, at the west side of the tracks and in the position so testified by him.

And while in that position, keeping in mind that his claim, that his attention was diverted to a westbound train coming from this.

If he was in that position as he says he was, then all he needed to do was to look at the signal block to the west and to the signal pole with the light on at the shanty and observe the presence of a train.

Not only that, he had not heard any whistle, he knew that a train had left Ravenna, a distance of some 15 or 18 miles, if I recall.

Now, what happened?

Plaintiffs -- petitioner says this, he says that as he stood there, he looked to his right or to the west and in so doing, he would have to look right at Home Avenue.

And when he looked at Home Avenue, he saw vehicles proceeding northerly on Home Avenue, come up to the crossing and stop, pursuant to the flashers and the other signals there existing.

He says this, that after he saw the caboose back at Home Avenue crossing or about 100 feet from where he was, if that be true and he says he looked at the block signal, then he could have seen that there was no westbound train approaching at that time.

There was no evidence in this lawsuit, nothing to suggest that the respondent in anyway violated any federal or state or local law or any applicable rule or regulation.

No watchman had ever been injured or killed on this process, nor was their any evidence that there had been any other or similar occurrence.

Now, what happened, what was the cause of this accident?

The cause of this accident was simply this --

Justice Potter Stewart: Mr. Kelly, before you proceed, how do you -- how do you read the testimony that call our attention or you'd rather -- hearing on page 68, I think.

In connection with the statements you just made that there was no evidence at all of any similar occurrence?

Mr. William A. Kelly: I interpret that in this fashion, Your Honor.

This witness used the expression, “jumping the gun.”

Now, this petitioner had worked on this crossing for seven years and at nighttime and at daytime.

He didn't testify and there was no evidence, there's no evidence -- there is no evidence in this record that a person who would be travelling northerly on Home Avenue, approaching Tallmadge Avenue, would suddenly cut to the left and move in on this 15-foot strip, that's my interpretation of that statement.

If that had been a practice, if that had existed, if that had happened in the past, certainly the plaintiff or the petitioner would have had some knowledge of that fact.

Jumping the gun, I assume is nothing more or less in what we see people do when they come up to a -- a stop sign or a railroad crossing, somebody is in a hurry to get out ahead of the procession.

Now what happened here?

Here, we have an admitted, intoxicated driver, a hit-skip driver, the testimony shows that he pulled up within that line of traffic and he was in the second or the third or fourth car, south of the railroad crossing.

There were other cars back of him, now what does he do?

All of a sudden after the caboose cleared Home Avenue crossing, this man takes off and he goes up and the record shows this, the record showed, he goes up about to the first rail of the most westerly track and then he suddenly swings to the left and runs right into the petitioner, turns off his light and speeds away in the nighttime.

He was intoxicated and the record so show.

Now when this man did that, he violated and this as appears in the record in the Court of Appeals so found and Mr. McGowan does not dispute it, this man violated five traffic regulations or laws of the State of Ohio and yet, we are charged with the failure to foresee conduct of that kind.

Now, that's his lawsuit, gentlemen.

This Court has said the access that negligence is a basis of liability.

Furthermore, it is the law that there must be causation between negligence and injury or death.

Any way you look at the record in this case, can it be said that the railroad company, the employer here, failed to exercise his judgment?

It's common sense, its fair beliefs in not providing this man with a safe place to work.

It is significant that over all the years so far as I can find and apparently so far as Mr. McGowan has not able to find any cases in which this Court has said that a watchman has a right to recover damage or has a right to submit his case to jury under circumstances such as we have on this case.

The absence of such cases, indicate it's rather absurdity of it.

On the contrary of that --

Justice Charles E. Whittaker: Mr. Kelly, tells the railroad company to maintain a watchman at such a place?

Mr. William A. Kelly: No, Your Honor.

Sometimes the Public Utilities Commission makes an order requiring a watchman to be maintained at certain crossings, but there's nothing in this record to indicate that any such order was made by the Utilities Commission as to -- with respect to this particular crossing.

Now, briefly and I shall close.

We have been able to find and we cite in our brief, three cases in which two in North Carolina and two in Ohio for the Sixth Circuit Court of Appeals before, Your Honor, Judge Potter was on that Court in which the Court held as a matter of law, there was no liability upon the part of the railroad company for injuries sustained by a watchman or a member of a train crew even, due to the conduct of a traveler on the highway who comes out in the light or out of the daytime and runs into a railroad employee.

Now, some mention has been made by Mr. McGowan about the Cahill case.

That can be answered very briefly and simple that Cahill case was simply a case where a 21-year old inexperienced brakeman, was a member of a train crew and working and switching operations in a street, I believe, up in New Haven and he was injured by a traveler on the highway or motorist on the highway.

In that case, there was evidence of -- of nine similar prior accidents.

We do not have any of those elements in this case.

Now, the sole proximate cause of this accident was a negligence of this drunken driver, the only person who was negligent was this drunken driver and therefore, is it any reason why the Court of Appeals can conclude it?

And why do (Voice Overlap) --

Justice Charles E. Whittaker: May I ask you too was there are any evidence showing even argumentatively how this man might have been protected from being struck by such a drunken driver?

Mr. William A. Kelly: The only way I could answer that, Your Honor, is by referring to page 4 of the reply brief of the petitioner, the reply brief.

It -- I'll look down.

In other words, keeping in mind that petitioner had the opportunity to see and did see there was no question about this in his record.

Traffic on Home Avenue, the only thing that's left as I view this case, is whether or not it can be said that there is a jury question because of the failure of the railroad company to have another watchman somewhere.

And so I close and I ask this rhetorical question, is it to be the law of this Court applicable to FELA cases that a railroad employer shall respond in damages because of a failure to have a watchman to watch the watchman?

Thank you.

Chief Justice Earl Warren: Mr. McGowan.

Rebuttal of Raymond J. Mcgowan

Mr. Raymond J. Mcgowan: If the Court please, here.

Mr. Kelly raised a question about the signal system.

Now, there isn't any question, but what he was supposed to watch were the other train that was coming.

They claim that there were signals there and that he could've looked at the signals, but in any event, he would've had to have his back to traffic on Tallmadge Avenue and traffic on Home Avenue, had he watched the signal.

But he states why he -- he couldn't see the signal on this particular night because this was a long freight train and he -- and he says on page 17 of the record, “What was your reason for looking towards (Inaudible), the answer, “One, to see if there was a reflection of the headlight coming around the curve.

I couldn't see the light down at East Avenue.”

Question, “Why couldn't you?”

Answer, “The eastbound train was blocking it, so that he had look to the left and when he looked to the left and in the north, his back had to be to Home Avenue.”

Now, then he says -- Mr. -- Mr. Kelly says what can they do, what could they do to protect this man?

Well in the first place this was an extra hazard at crossing.

If they permitted this man to face traffic after -- after that train started across the crossing, if they wouldn't have shouldered on him, the additional duties of -- of watching for this train which was coming in the opposite direction and the additional duties of watching for hot boxes and their conductor, Mr. Peterson, stated that he -- that was one of his duties.

Now then, if they would've permitted him to face traffic, face traffic on Home Avenue and Tallmadge Avenue, it's our contention that he would have been able to step aside or do anything to avoid being struck.

Now, one of the members of the Court asked about this drunken driving.

There was one witness that the railroad brought in, a man that -- that was driving behind this person that testified about three or four blocks away and it's in the record.

He had -- had gotten up and had an argument with this man and that he smelled liquor on his breath and that in his opinion, he was intoxicated.

That's the only evidence.

Mr. Inman was taken to the hospital.

We have no way, we didn't know who this witness was, but that was -- that was the only evidence of any intoxication.

Now, then, in addition to that, if the Court please, we have evidence here.

There's evidence in this case that -- there's ample evidence in this case that if this man, if this man's -- what actually happened there is this.

The negligence of this fellow Ball was enlarged.

We claim his negligence was enlarged by the fact that --- that the plaintiff, the petitioner had to have his back to traffic at this particular intersection.

Now, Mr. Kelly made a statement that there wasn't any evidence that traffic ever made a left hand turn from Home Avenue into -- into Tallmadge Avenue.

Now, we'd like to refer this Court to the exhibits in this case which are found here.

The -- the contour, the street and the tracks on the street show that traffic was heavy.

Plaintiff's Exhibit 11, page 216 of the record and even the defendants, one of the defendant's exhibits, shows that traffic was heavy and that exhibit number is defendant's Exhibit E, which is found at page 227.

That shows that traffic was heavy on the intersection west of the railroad tracks from Home Avenue into Tallmadge Avenue.

Now, we claim that under all of this evidence, there was a factual situation there for the jury.

The jury resolved the facts in favor of the plaintiff and under the decision of Judge Brennan in the Rogers case, all of these facts, the condition of this crossing the nature of it, the fact that there were -- that this intersection come in from Home Avenue into Tallmadge Avenue and was not blocked-off thereby permitting traffic to move and make a left hand turn while that man was on duty.

All of those were factual situations along with the fact that he had his back to traffic which the jury had a right to consider and they resolved those questions in favor of the plaintiff and the Court of Appeals presumed to take it upon themselves to overrule the jury and incidentally, they -- they -- the Rogers case had been decided before the case was heard by the Court of Appeals, but instead of referring to the Rogers case, they cited the Ohio jurisprudence on negligence.

Justice Hugo L. Black: May I ask you, how did you -- if you say that the Exhibit 11 on page 216 either one on plaintiff's Exhibit E on (Inaudible)

Mr. Raymond J. Mcgowan: Well, I -- Your Honor, there's a -- there's a Joint Exhibit R on page 236.

Justice Hugo L. Black: I looked at the others and I don't --

Mr. Raymond J. Mcgowan: See on the highway there -- see the highway, that's -- that's where the turn is.

Justice Hugo L. Black: What is the other one you were referring to?

Mr. Raymond J. Mcgowan: Well, there is -- there is -- plaintiff's Exhibit 11 on page 216 and there is plaintiff's of Exhibit 5 on page 214.

They all showed tracks there of vehicles and they showed the condition of the highway, the surface of the highway.

Justice Hugo L. Black: Tracks that be here.

I -- I'm looking at it.

I don't quite understand that argument.

Mr. Raymond J. Mcgowan: Well, Your -- Your Honor, they show that the -- the pavement there, even in some space -- in some places, even torn up --

Justice Hugo L. Black: Well, you mean they show a street?

Mr. Raymond J. Mcgowan: A street, that's right.

They show a street.

Justice Felix Frankfurter: There's only one doubt that may not possibly --