DAVIS v. VIRGINIAN R. CO.

Print this transcript Transcript: 

Argument of Henry E. Howell Jr.

Chief Justice Earl Warren: Number 53 Clifford M. Davis versus Virginia Railway Company.

Mr. Davis you may proceed.

Mr. Henry E. Howell Jr.: Mr. Chief Justice and honorable associate Justices, the petitioner in this case is a railroad employee, a yard conductor, who was injured while attempting to carry out his duties incident to a switching movement at the Ford Assembly Plant in North of Virginia.

He is complaining of two actions of the Court below, the first the Court deprived him of a Jury Trial with respect to the liability of the railroad insofar as how this accident occurred and the railroad's breach of duty under the Federal Employer Liability Act.

The second question is a little more intriguing.

It cites as error of the lower Court's decision in holding as a matter of law that the doctor employed by the railroad to treat this injured employee was not an agent or an employee within the contemplation of FELA.

Now the first question we feel is boiled down to three charges of liability but with respect to the railroad.

Number one we feel that the record is clear that a jury question was created with respect to the amount of time that was allotted to the performance of the particular train movement involved.

Number two, we feel that the petitioner was furnished inexperienced personnel and three we feel that an improper work area was furnished him with respect to the condition of the right of way immediately adjacent to the track.

Now, how did this accident occur?

The Ford Motor Company took a 30-minute lunch period.

While their employees were eating lunch they weren't at the railroad to spot the railroad cars containing the parts necessary to assemble the automobiles at certain predestined spots inside of a house shed.

The car had to be exactly positioned opposite this opening in order to comply with the requirements of the Ford plant.

The railroad in an attempt to accommodate its customer allotted only 30 minutes for a shifting operation which without -- substantial contradiction and certainly the evidence is to be viewed in the light most favorable to the petitioner in the view of the deprivation of the right by jury, the evidence was that with two inexperienced brakemen, it would require from an hour to an hour and ten minutes and that even if the brakeman were experienced which is not the case here, it would require approximately 50 minutes.

So the railroad was creating a situation that involved haste by a necessity in order to accommodate the Ford plant they were requiring a job to be done in half the time that ordinary prudence would suggest.

Now on this particular day this yard conductor who ordinarily would give his signals from the ground to his brakeman had been furnished with two young men who had never before in their lives spotted cars within the house shared of the Ford plant.

On page 51 of the record, Mr. Pennington, the so called senior bake -- brakeman was asked, “Did you know how to spot cars in the house?”

“No sir.”

“Did you need any assistance on the morning of July 03, 1957?”

“Yes sir.”

“Whom did you ask to assist you?”

“Peanut.”

“Speak a little louder we can hardly hear you, Mr. Davis”, that was the yard conductor.

Now we have even more interest, Mr. Pennington states what Mr. Davis was attempting to do at the time that he slipped from the grab-on of the car and caused his injury.

“Do you know why he was coming back?”

Mr. Davis had been walking in consistent with this 30 minute work schedule that created a climate of haste; he was walking along the top of these freight cars to get to a position where he could assist this inexperienced brakeman.

When he reached the gondola car which required him to come down the side of the box car and hasten up and then get up on the next box car and continue on to his brake work.

“Do you know why he was coming back?”

“He was coming back there with me to show me where to spot cars.”

“When did you last see him?”

“I seen him when he come to the gon.”

“What do you mean by gon, gon door?

”“What do you mean by gone done door?”

“Yes sir that is the lower car from the box car.”

“What if anything did he have to do when he came to the gondola?”

“He had to come down and run up ahead and catch a car that was higher so he could walk on back to me.”

“Were you asked to do anything out there that day or directed to do anything out there that day prior to the time that this accident happened that you were unable to do?”

“Yes sir, I made quite a few mistakes.”

Now here was a yard conductor, given a job to do in 30 minutes, given two men that had never before spotted cars and he -- within this climate of haste he was doing everything he could to comply with the requirements of the -- of the customer of the railroad.

He was going back to this inexperienced brakeman when he slipped from the romp of the ladder.

Haste makes waste and this waste was created by the railroad in requiring an unusual schedule for this particular involved movement.

We've already alluded to the inexperience of the personnel.

With respect to the improper work area, the evidence in the record is --

Justice Potter Stewart: Just before you leave the haste waste -- haste makes waste point, was there any evidence of the record that he was -- that he was hurrying unduly or hurrying in -- in descending that ladder?

Mr. Henry E. Howell Jr.: Yes sir there -- there is.

The witness, Pennington, said that he was coming back in order to run up and get to the next car, he was coming down the freight car in order to run by the gondola and get up on the next freight car so he could arrive back at where Pennington --

Justice Potter Stewart: Where in -- where in the record is that, fifty --

Mr. Henry E. Howell Jr.: That in the -- in the record is page 51 if I'm not mistaken.

He had -- page 52, question; “what if anything did you have to do when he came to the gondola and had to come down and run up ahead and catch a car that was higher so he could walk on back to me?”

Now if the Court pleases, when you set a schedule of 30 minutes to do something that would ordinarily require you to do in an hour, you must be in a climate of haste during that whole period of activity.

You're working under a pressure that is just as if this Court had to decide 20 cases between now and tomorrow and write opinions for it.

The Court would have pressure.

It would be doing everything it could to fulfill this deadline that for some reason was imposed and we would create a situation which would be similar to that which was imposed upon Clifford Davis.

Now there we think is the heart of this case even though we have a third point with respect to point one.

Namely, that the Act was passed by Congress in anticipation that -- that the requirements of the industry, the requirements of the railroad would create a hazardous situation and here the railroad choose -- chose to satisfy the customer at the expense of a safe working condition, a safe place to work, a safe climate in which to work and when they chose to satisfy the customer at the expense of the employee, then the Act seeks to afford the broadest of coverage to the worker.

Now just in passing the improper work area of the evidence is uncontradicted that the right of way alongside of a track should be flat because men are descending from the cars to the ground.

And here we have a situation where one witness testified that it was tantamount to a drainage district that was on page 59 of the record.

All witnesses testified that the earth left to the side of the track that had a 45 degree angle.

Other witnesses described that condition is being rough and they all agreed that it should be flat.

Justice Potter Stewart: Well what was the evidence that heading to that condition caused or contributed to cause of the --

Mr. Henry E. Howell Jr.: Dr. Thiemeyer, if the Court pleases testify that -- just -- on page 31, force exerted on an obliquity -- obliquity usually offers more stress, more force.

He testified that by landing on a 45 degree slope, this man's entire weight was pushed down on his toes and even though he only dropped a distance of 15 feet that by applying all of his weight forward at an oblique angle that that would create an unusual and -- and far more stress than if it had been on a 15 feet, I mean if it had been on a straight surface.

Now the Court took over as it -- as the lower court did in many places of these cases.

This action which strange to the Circuit Court of the City of Norfolk the character of FELA and the Court created the finding at which Judge Frankfurter has referred to in other decisions there was an atmosphere of a -- of resistance or an atmosphere of unawareness of the full scope of -- of FELA and the Court took over here and said, doctor well if he had fallen on a --

Justice Potter Stewart: FELA?

Mr. Henry E. Howell Jr.: Federal Employees Liability Act, I apologize for the abbreviation F-E-L-A, the FELA Act, Federal Employees Liability Act if Your Honor please.

The Court said that if this man had fallen on a flat surface would he have fractured his heels and that under the range of the Judge says that, yes Judge he could have fractured his heel but he -- he didn't fracture his heel, he fractured his metatarsal bone and he did so because the doctor said he fell on an oblique 45 degree angle rather than on a flat surface.

Justice Potter Stewart: He would have fallen on a part that before he hit the ground if the surface had been flat?

Mr. Henry E. Howell Jr.: By about 6 inches if Your Honor please.

It was a 45 degree slope.

We have pictures in the evidence but it was just a -- it just involved about 6 to 7 -- the lower level would have been up ground to 180 degrees would -- would have involve 5 to 6 inches.

Justice Charles E. Whittaker: Mr. Howell.

Mr. Henry E. Howell Jr.: Yes sir?

Justice Charles E. Whittaker: Did he happen to announce that -- are you like -- that the railroad must under the doctrine that forced the ability so cushioned its right of away against the possibility that someone might fall off this car and get hurt.

Is that what --

Mr. Henry E. Howell Jr.: They do not have to cushion it if Your Honor please --

Justice Charles E. Whittaker: What do they do?

Mr. Henry E. Howell Jr.: -- but they do have to make it level because a --

Justice Charles E. Whittaker: In all places?

Mr. Henry E. Howell Jr.: At all places in a -- where a shifting operation and a switching yard for a man who is going to have to descend -- the braking and coupling was many times during a shifting operation into an assembly plant.

This is not -- I would -- in the great State of Wyoming where the freight car would go and on and on but this is a shifting situation with a very tight schedule requiring particularity in the placement of the cars and the maximum agility on the part of the -- of the personnel.

Justice Charles E. Whittaker: So that if a man should by accident fall off a car, he'll have smooth surface at least.

Mr. Henry E. Howell Jr.: That's where I'm going.

That's exactly the point.

Justice Charles E. Whittaker: I know.

Mr. Henry E. Howell Jr.: Now I want to proceed to the point that I think is much more intriguing.

It's a -- it's a point of national importance and in my humble opinion in the application of the Federal Employers Liability Act and I frankly feel that the device is somewhat insidious that has been adopted by the railroad industry.

And that is the position of a doctor employed by a railroad in the business of the railroad of adjusting claims.

The adjustment of claims of injured employees is a major portion of the business of railroads and with the astute management and constructive intelligence of railroad managing front, they have come up with a -- a scheme I call it, that is rather remarkable.

In this case the -- who employed the doctor?

Was it the general surgeon or was it someone else?

It was the claim agent.

The general claim agent employed the doctor.

Now his relationship with that claim agent is very interesting in my opinion.

I cannot relate this most crucial fact in a -- more vividly than the railroad doctor did who was called, what are, on page 37 if the Court pleases, what are some of the other types of relationships that you have with Mr. Goodwin, that's the chief claim agent, about injuries, settling claims, how bad someone is hurt, do you have to ask the employee whether you may talk to Mr. Goodwin about his case or do you feel that you can do that directly to Mr. Goodwin without consulting the employee?

I've been doing it for 25 years -- 28 years.

Would you talk about what was wrong, what was not wrong with the private patient to some other party without first consulting the private patient?

Why would I talk to another party about it that?

They might all want to know what is wrong with Mrs. Jones, would you tell them?

No, alright you don't hesitate to tell Mr. Goodwin what is wrong with an injured employee do you?

Of course he sent him to me to treat.

Now who is the agent or who, because he, the chief claim agent who is interested in settling claims, sent him to me to treat.

Alright are you paid by the Virginian Railway to treat the man?

Yes and then I would go on.

Justice John M. Harlan: Was there a requirement that employee who didn't have to go through this route?

Mr. Henry E. Howell Jr.: Rule 70 -- rule 731 of the rules, operational rules of the railroad appearing on page 47 of the record, rule 731, “employees injured on duty should if able, report to the nearest resident surgeon or if no resident surgeon is available to the nearest company surgeon.”

Now if Your Honor please --

Justice William J. Brennan: That has I suppose of the ground of alleged violation independent of these grounds of the right to work or --

Mr. Henry E. Howell Jr.: Completely independent Justice Brennan and is never -- the Del John case with respect to a -- a seaman on a passenger vessel flirted with this proposition but never has this Court had an opportunity to interpret the position of a railroad doctor with respect to the language agent and employee the railroad shall be and this Your Honor right in the majority opinion for the courts said that that -- those words shall not be given an accommodating scope and we say here that you do not need to accommodate the scope that the record is clear that the doctor is the agent of the railroad.

He sent him to me; I'm not going to send a report to the injured worker.

I'm only going to send a report on the physical condition to the claims adjustor --

Justice William J. Brennan: Regarding that candidate was very close to this that whatever may be the reason for an employee to presume when you can see it employs abuse and if the railroad had provided a (Inaudible) for the purpose of sending the employee to his work that the railroad would then by owing to the negligence, that position of treating of the employee?

Mr. Henry E. Howell Jr.: That's exactly right if Your Honor please and in this case --

Justice Tom C. Clark: Is that your second cause of action?

Mr. Henry E. Howell Jr.: That's my second cause of action if Your Honor --

Justice William J. Brennan: You didn't get the theory on that one --

Mr. Henry E. Howell Jr.: No sir the Judge held as a matter of law that a doctor could never be an employee or agent of a railroad.

He was an independent contractor and as such would have to stand on his own footing.

Now we humbly disagree with the lower court in view of the broad scope of the Federal Employers Liability Act and I think that the treatment or lack of treatment given this injured man would shock the conscience of even a first aid corpsman in the navy.

The man had a fractured foot, the railroad doctor found out about it, he put a bandage around his foot, and the man went home.

He was in excruciating pain.

He borrowed a pair of crutches from someone in the neighborhood.

He crutched his way back to the doctor and the doctor says, “Why have you got those crutches?”

He says, “My foot hurts.”

The doctor says, “Throw it away and -- and walk on your foot, that's the way it will heal.”

He sent him back to work for the railroad without re -- without re-x-raying the foot to see whether the fracture had even healed and doctor Thiemeyer testified that it was improper so to do.

That you should rest the foot, give the bones a chance to heal before you put pressure back on them.

That by sending a man out to put even weight on his foot extended the time of cure, aggravated the fracture and that's our opening argument if Your Honors please.

Chief Justice Earl Warren: Mr. McNamara.

Argument of Thomas R. Mcnamara

Mr. Thomas R. Mcnamara: Mr. Chief Justice, Honorable Associate Justices; before I get too involved and forget it I would like to point out in reply to the question just put forth by Mr. Justice Harlan that in the record on page 47, Mr. Goodwin, a claims agent for the Virginian Railway Company was asked whether there was any obligation on the employees to go to this particular doctor or whether that was a matter of choice with them and his reply was, they have the privilege of going to the company doctors that we supply up and down the railroad.

They are not compelled to go to those doctors and if they want to go to a doctor of their own choosing they may do so.

Now in this case, this plaintiff availed himself of the services of the physician who was employed by the railroad to treat such of these patients or employees who might come to him.

Later, he availed himself of the services of his own physician.

There was no question about his propriety in doing so.

The only rules pertaining to the -- that matter are the ones which Mr. Harlan has referred in the further rules number 733 found at the top of page 48 in the record.

“An employee injured on duty who has received medical treatment -- no I beg your pardon, it's at the top of page 51, rule 732, employees injured on duty who select the services of physicians or surgeons other than as provided by the company must assume the expense thereof.

Justice Hugo L. Black: What page is that?

Mr. Thomas R. Mcnamara: At the top of page 51 in the record, rule 732.

Chief Justice Earl Warren: And what is the one that Mr. Howell referred us to?

Mr. Thomas R. Mcnamara: It was the rule 731, the one immediately in order of sequence in the rule book before this one I have just read and that is found at the bottom of page 47 in the record.

Chief Justice Earl Warren: 47?

Justice William J. Brennan: (Inaudible) I gather that the railroad made available to injured employees a surgeon in which in this sequence, was he a resident surgeon or a company surgeon?

Mr. Thomas R. Mcnamara: He's a private practitioner in the city of Norfolk.

The great bulk of his business is on orthopedic surgery there in the city.

He has his own office.

He has his own equipment, he keeps his own hours.

There is absolutely no regulation over him by the railroad in any respect.

Justice William J. Brennan: No -- no what I'm trying to get is, is he a company surgeon?

Mr. Thomas R. Mcnamara: In that sense if you use that term company surgeon I suppose --

Justice William J. Brennan: Who pays him?

Mr. Thomas R. Mcnamara: -- he might be.

He is paid a monthly regular stipend of $125 per month by the Virginian Railway Company.

Justice William J. Brennan: And that do I take it that employees are told that -- that is at least employees with the injury this petitioner had that they may consult him in respect to that injury?

Mr. Thomas R. Mcnamara: There was no expense to them if they choose and if they don't want to go to him they can go to their own doctor and pay their own way.

That's -- that's the regulation.

Chief Justice Earl Warren: But there's a little problem to that, isn't it?

Doesn't it say that employees injured on duty should, if able, report to the nearest resident surgeon, the time you've spoken of or if no resident surgeon is available, to the nearest company surgeon.

So he should do it as --

Mr. Thomas R. Mcnamara: Yes I don't deny of course the wording of the rule.

That rule though in application is enforced by the general claim agent who has testified that they're not compelled to go to those doctors.

That's not the meaning of the rules insofar as the railroad is concerned.

And you have just above where you're reading there on page 47, you find Mr. Goodwin saying they are not compelled to go to those doctors and if they want to go to a doctor of their own choosing they may do so.

That situation is provided for by the very next rule which I have referred to before.

Chief Justice Earl Warren: I suppose the jury will hole that -- as opposed to what -- to give what effect it wanted to that rule, but only you wouldn't be bound by which -- what the doctor said.

What is it, if the rule was there?

Mr. Thomas R. Mcnamara: What if the construction of the rule -- I'll say this Your Honor I don't want to spend too much time on this particular point which I think is -- is pretty minute but --

Chief Justice Earl Warren: But if -- if the jury found by the interpretation put on this rule by the doctor?

Mr. Thomas R. Mcnamara: By the doctor?

Chief Justice Earl Warren: The doctor.

Mr. Thomas R. Mcnamara: There is no --

Chief Justice Earl Warren: (Inaudible) by claims that --

Mr. Thomas R. Mcnamara: By the claim agent.

Chief Justice Earl Warren: Yes.

Mr. Thomas R. Mcnamara: Now the claim agent is a man who enforces the rule and his was the only testimony as to how in practice it is followed.

That testimony stands un-contradicted in this record that it's a matter of their choice.

Chief Justice Earl Warren: Except insofar as the rule --

Mr. Thomas R. Mcnamara: Except insofar as the wording of this rule goes but then that's immediately followed in the same book by the next rule which provides for that -- their going to their own physicians if they so choose at their own expense.

I -- I won't say on that point Your Honor that a jury would not be justified in reading this just as you have read it that they should go.

The point is that if they're going to that or -- or if they-- if they want to they -- treatment, the medical treatment at the expense of the company they should go.

The very next rule provides that if they care to pay for their treatment themselves, they can choose any doctor they want.

Justice Hugo L. Black: Can they return to duty without a slip of the company surgeon?

Mr. Thomas R. Mcnamara: That's not in the record Your Honor.

It's my understanding --

Justice Hugo L. Black: You -- you referred I think the rule 48 and that's -- that's what I have here.

Mr. Thomas R. Mcnamara: Rule 48?

Justice Hugo L. Black: It's on page 48.

Mr. Thomas R. Mcnamara: Page 48?

Justice Hugo L. Black: Rule 733.

Mr. Thomas R. Mcnamara: Rule 733, employees injured on duty who has received medical treatment must obtain a return to duty slip from the surgeon.

That's the only place that that particular thing is mentioned, it was not dealt with and I don't know in fact as to whether it's done or not.

I assume so.

I assume that if someone got his own private treatment, that he would -- his doctor would then advise the -- Doctor Leigh employed by the company that the man was fit to return to duty and a duty slip would be issued.

Now if it pleases the Court the respondent in this action takes --

Justice Charles E. Whittaker: May I ask you please sir, just before you go into that, one quick question.

I know that in some railroads contributions are made by employees to a so called medical association, is this true in this case?

Mr. Thomas R. Mcnamara: No sir.

Justice Charles E. Whittaker: It is not contributory at any way?

Mr. Thomas R. Mcnamara: No sir.

Justice Charles E. Whittaker: Alright.

Mr. Thomas R. Mcnamara: There is no substantial dispute as to the law applicable to this action as between these two parties.

It is understood by camp -- by this respondent as I'm sure it is by petitioner, that each case will stand on its own facts and that if the proofs introduced in any action could be said with reason by the trial court to justify inferences from which the jury of fair minded men could conclude if there was negligence on the part of the defendant and if they could further conclude with reason that this negligence in fact played some part however slight in the injury of the -- of the employee then a jury question is made out, we do not question that.

The courts below did not question that, this -- the petition as counsel's brief has indicated that there was some refusal among the courts -- of the courts of the State of Virginia to apply that principle that -- that is not the case.

The case was thoroughly considered in the light of these decisions and briefs were submitted to the Supreme Court of Appeals of Virginia, submitting the case on that point, on that principle and after full consideration of these briefs the Supreme Court of Appeals of Virginia affirmed the trial court's ruling that if proofs were just not in this record from which with any reason at all, jury could conclude that there was negligence on the part of the defendant which in any way caused or contributed to this man's fall.

Justice Hugo L. Black: Did they write an opinion on it?

Mr. Thomas R. Mcnamara: No Your Honor.

The opinion was simply, no opinion at all, simply an order refusing the petition for a writ of error on the grounds --

Justice Hugo L. Black: Did the District Court write an opinion?

Mr. Thomas R. Mcnamara: No, no there has been no opinion in -- at all Your Honor.

Chief Justice Earl Warren: How would you say that was the basis on which they did the --

Mr. Thomas R. Mcnamara: That was the argument set forth in the briefs and -- you mean the Supreme Court of Virginia?

Chief Justice Earl Warren: Yes.

Mr. Thomas R. Mcnamara: That was the argument set forth in the briefs and that was the grounds upon which the trial court struck the plaintiff's evidence.

You understand the procedure was simply that the plaintiff introduced his case at the conclusion of which the trial court struck his evidence.

The respondent never introduced any evidence and the basis for striking the evidence was that the plaintiff's case did not make out any case.

Justice Hugo L. Black: Where is that?

Did he make any statement at all?

Mr. Thomas R. Mcnamara: No there was no written opinion in either --

Justice Hugo L. Black: I mean that orally has been directed as that what --

Mr. Thomas R. Mcnamara: No it has no -- no oral statement in the record that I know of.

The facts as to how this accident happened or in just are -- are the controlling issues.

They were considered by the trial in the appellate courts and in there -- in those courts' analysis of these facts they both determined that there was not any proof from which was reason -- a jury issue was made early.

They boiled down to this.

This man on this day, a summer day in 1957, was in charge of an operation the -- in which in a nutshell was to take certain loaded -- empty cars out of the Ford plant along a spare of track and get rid of them.

Then to bring in along that spare of track certain loaded cars and ultimately to push those loaded cars into the assembly plant as the track went right in the roof -- under the roof of the building.

The empty cars had been removed.

The conductor who was the plaintiff here and who was in charge was in the process of assembling the loaded cars on this spare track so that after he got them all in the pre-designated sequence on this spare track thereafter he was to push them into the house and put them at this position -- at these various positions.

He hadn't gotten them all assembled yet, there was still some eight to be taken from the main tracks and brought into the spare track when he was walking on top of these box cars in order to go to the end of the train closest to the assembly plant, his testimony is that he walked along the tops of some nine cars until finally he came to a gondola car.

He then crossed the gondola cars, an open car and has no top to walk on, he then had to get down.

He faced the ladder, he put his hands on the ladder, he turned and put his feet on the ladder, he assumed what he insisted was a perfectly normal and customary position to descend that ladder.

Then for some reason wholly unexplained he says, his foot -- feet slipped off from under him and he fell.

There was no suggestion that the train was moved.

There was no suggestion that the ladder was defective.

There was no suggestion that his other fellow employees interfered with his movement or hampered or hindered his descent in any manner.

There was no suggestion that he was hurrying.

His testimony was that he was.

There was no suggestion that he abandoned any safety precautions.

He said he took a perfectly normal and customary position on the ladder.

Justice John M. Harlan: (Inaudible)

Mr. Thomas R. Mcnamara: At page 18 and page 19, at page 18 he was asked by the Court, before counsel, was defendant cross examined, the Court would like to know something about this; you came down a metal ladder, iron ladder or wooden ladder?

Answer - metal ladder.

You say you put your feet on the second ramp from the top?

Yes.

How far was that from the ground?

That was 15, 10 or 15 feet.

When you put your feet on the second ramp what did you do with your hands if anything?

I had my hands on the top ramp.

Question, when your feet slipped off according to your testimony at the second ramp, did you turn loose from the hold you had on the ladder with your hand?

Answer - Totally.

Now here's the question, flatly, what caused you to fall off that ladder?

Answer - it is -- it might have been greased or anything on my shoe.

Then and there was his opportunity if he felt so to -- so to testify that there was the rushing that he was supposed to have been doing.

Justice Charles E. Whittaker: Did he ever (Inaudible) that it was one or the other?

Mr. Thomas R. Mcnamara: No, no we never suggested that he was rushing at this moment.

There was no testimony that he did not take every precaution for his own safety at coming down this ladder.

Justice Charles E. Whittaker: He started putting out about those shoes, didn't he?

Grease on his shoe or what?

Mr. Thomas R. Mcnamara: It might have been grease or anything on my shoe.

Justice Charles E. Whittaker: So he never did say that it was one or the other?

Mr. Thomas R. Mcnamara: No, no.

Now then on at the bottom of page 19 he was asked, is that a normal customary position in using this type of ladder and he answered, it sure is yes sir.

So he is on the ladder in a normal customary position having walked there getting ready to get down and without any further explanation his feet slipped off and he fell and the only reason that we have in this record for that having happened is that it might have been grease on his shoe.

On that record he suggested this Court with reason can say that -- that -- that his fault was attributed to by the defendant's negligence.

Those facts to that extent are uncontradicted or completely uncontradicted.

That's how the accident happened.

Now then the plaintiff's counsel suggests theories under which it may be found that there was a jury question and one theory is that he was ordered or required by his orders to do work in an unsafe manner and to abandon safety precautions and in doing so he was injured.

In the first place the record is clear that he never abandoned any faith -- any safety precaution.

Under his own testimony, of course there was no suggestion that he ever did.

He walked, he assumed the proper position on the ladder and the only suggestion for his fall was his own, that it might have been grease on his shoe, the ladder was not bent and there was no other movement by the train or his fellows which contributed in anyway to his falling.

And the other theory on the -- the next part of that theory of petitioner's counsel is that notwithstanding the fact that he -- he did in fact take his safety precautions, nevertheless we -- we are forced to deal with the various reasons why he says his orders are quite in -- not to take the safety precaution.

Very briefly, I want to refer to two points, two places in the record in reply to that.

I wanted to be understood clearly by this Court that the theory upon which plaintiff is relying is that his orders required him to abandon safety precautions.

Now then he was doing a job which other conductors had done before him.

And he was told the day that he went out there to take over this job which was a month prior to this accident to get these trains -- get this transfer made during the lunch time of the Ford Company.

He ascertained that that lasted 30 minutes.

He says that that was a 30 minute requirement on him, a limitation on him requiring him to abandon safety precautions if necessary in order to accomplish that job within those 30 minutes.

On the other hand, the other conductors who had operated their job before him were asked on page 35; are you ever required to do more than you would to do, than you would do to operate safely?

And the answer, no sir, and the plaintiff himself was asked at greater length beginning on page 21 the following questions after he testified that as to what his instructions had been he said in response to these questions, question - he did not tell you that you had to meet that schedule even if it meant for you to abandon safety precautions, did he?

Answer - no sir, no he did not.

And it is your job to do whatever your operation is and at the same time to observe safety precautions for yourself and your men, isn't it?

And then that question was repeated and his answer, yes sir.

And when you are assigned to do a particular task, that assignment means that you do that task while observing your safety precaution, does it not?

Answer, you have got to work as rapidly as you can and try to be safe while you're doing it.

Question and trying to be safe while your doing it and if you reach a point where it is necessary to abandon safety, in order to do a certain thing by a certain time, you just have to go slower, don't you?

Answer, yes sir.

Now then his theory is that his orders required him to abandon safety in order to do a certain thing by a certain time.

Justice Hugo L. Black: But there is a testimony down below that assuming that that's the way it's done -- a charge, the testimony was that (Inaudible) to be found in the -- below what you read?

Mr. Thomas R. Mcnamara: I don't believe in this record there is anything in conflict with this with what he has testified to himself up here, where he admits that if he reached a point where it would have been necessary for him to abandon safety precautions in order to do a certain thing on a certain time under that type of orders that he had, that his obligation would have been to go slower.

Justice Hugo L. Black: Down below it maybe a conclusion aside from the -- he gave me that list perfectly that the job was to be done in 30 minutes by the Ford man I've learned.

Does a breaking of safety rules means that the job was to be done in 30 minutes?

Mr. Thomas R. Mcnamara: Yes Your Honor we don't deny that he was told to do this job on his testimony while the Ford people had lunch and that that was 30 minutes.

We -- we submit that under the -- all of the evidence that and -- and including what he has testified to in defining just what that order meant to him, that it was understood as between the employee and the employer that that was no time limitation which would have required him at any time to have abandoned any safety precautions on --

Justice Hugo L. Black: Assuming -- assuming there is requirement that he was required to do something in 30 minutes -- the difference he's gone so fast to obtain this.

Did he say that with the jury case?

Mr. Thomas R. Mcnamara: If in fact he was ordered -- yes, yes?

Justice Hugo L. Black: You are – you are saying is that there's no evidence to prove that particular point?

Mr. Thomas R. Mcnamara: That's right, yes sir.

There was no evidence that with reason, reading this whole record, with reason could have been said to say that this man was ordered to abandon his safety precautions in order to complete this job within this time.

In fact that's what his own testimony refutes.

Now then he -- the plaintiff's counsel refers also to the inadequacy of the word cross.

I'd like to make this point clear that the operation which was being conducted when this accident happened was the assemblage of the loaded cars on the spare track preliminary to putting these loaded cars in the Ford plant.

Now then it is the spotting of the cars in the Ford plant in which these brakemen were inexperienced.

They had both had a year's experience in doing the job that they were doing when this plaintiff was injured.

We refer to his, not to this brakemen not being experienced in spotting the hoist that means placing cars within the hoist.

But that was not what was going on and their inexperience in that respect had nothing whatsoever to do with the -- what was going on at that time.

It had nothing to do admittedly under this record with this plaintiff falling from this ladder.

Chief Justice Earl Warren: Were they experienced in doing what they were doing at this particular place?

Mr. Thomas R. Mcnamara: Just ordinary switching and coupling they had each had approximately one year's experience with the railroad --

Chief Justice Earl Warren: At this particular place, in this yard?

Mr. Thomas R. Mcnamara: No not that much in this yard but there was testimony --

Chief Justice Earl Warren: Wouldn't the character of the yard and the slope of the -- slope of the -- of the terrain underneath the train have something to do whether if they were acting in -- in a -- a hurry and acting on a new job?

Mr. Thomas R. Mcnamara: he testimony on this record Your Honor was that the type of switching and coupling operations that was going on over here was no different from the -- from what -- what they would have been at any other yard.

Chief Justice Earl Warren: But wouldn't it be different if it was flat instead of sloping?

Mr. Thomas R. Mcnamara: Well I suppose it would.

Chief Justice Earl Warren: Insofar as they alight from the car, isn't there-- isn't there a difference in the footing and a difference in -- in the man's likelihood of falling depending upon whether it is -- it is flat or whether it is smooth (Voice Overlap) or whether it is sloping away from the train?

Mr. Thomas R. Mcnamara: Certainly that's true.

Chief Justice Earl Warren: Well isn't that issue in here?

Mr. Thomas R. Mcnamara: No.

Chief Justice Earl Warren: I thought counsel said it was?

Mr. Thomas R. Mcnamara: That issue is -- is in to this extent, it does not involve what the brakeman other than this conductor had to do or -- or anything in connection with their experience.

It's only in the --

Chief Justice Earl Warren: It would have to do with -- with where his foot struck when he --when he fell down from the car, didn't it?

Mr. Thomas R. Mcnamara: Yes but after he fell off and landed on the ground.

The fact that the -- the fact that the ground was sloping caused his arch to pull up and caused the breaking of the arch bones.

Chief Justice Earl Warren: Yes.

Mr. Thomas R. Mcnamara: And the medical test knowing it was that if it had been flat the chances are he would have broken his heel and that's a much more serious injury than the arch bone.

Chief Justice Earl Warren: But I thought the testimony of -- and also by the same doctor was in effect -- to the effect that if it was flat, he would be less likely to break anything?

Mr. Thomas R. Mcnamara: I don't read it that way Your Honor --

Chief Justice Earl Warren: Perhaps I -- I read it some place I don't think I read --

Mr. Thomas R. Mcnamara: The doctor's testimony --

Chief Justice Earl Warren: Where did I see that -- the --

Mr. Thomas R. Mcnamara: Doctor Thiemeyer testifying --

Chief Justice Earl Warren: Where did he -- where is his testimony?

Mr. Thomas R. Mcnamara: Page 30 about half or three quarters of the way down.

The Court said, is it probable that a person of the weight of the plaintiff falling 15 feet to a flat surface would likewise have fractures?

His answer - falling 15 feet, question.

yes, on a flat surface, question; on a flat surface?

Yes then he says I couldn't necessarily say the second metatarsal, but I would say fracture would be very probable.

Now then over at the next page in the middle of 31, question; the other fracture would have been about the same?

Answer, the usual fracture that occurs in a straight fall on that height is one of the os calcis of the heel bone.

With fall at obliquity the force is moved forward such that the fracture would occur in the metatarsal.

So that the only effect of the -- the right of away being slanted instead of being flat was that he broke his metatarsal instead of his heel and the heel was a much more serious bone to break than the metatarsal.

As to the -- as to the negligence of the employees or as to the inadequacy of the workforce I simply state that they were not engaged in anything that the plaintiff was doing at time of his fall.

Nothing they did, nothing they didn't do, had anything to with his falling off the ladder and the plaintiff relies simply on the fact that he was on top of the box car whereas he might not have been if he had had a greater number of brakemen and they had been more experienced.

The answer to that question is fully answered in the case of Atlantic Coast Line against Reynolds which case would have to be overruled by this Court if -- if the Court rules that there was a jury question in this present action on the inadequacy and insufficiency of the number of brakemen in the case of --

Chief Justice Earl Warren: Mr. McNamara just to go back to what I asked you a few moments ago on page 31 of the record the question was, doctor I am going to try to reframe this question.

I want you to first of all consider Mr. Davis as an active railroad worker engaged in switching cars, jumping from moving cars.

Now on this day when he fell, if he had fallen on a horizontal surface which was composed of dirt covered with turf or grass straight down 15 feet, do you think it would be probable that a fracture of the whatever that bone is would occur?

Answer - I would like to say this that I feel that his falling on an oblique surface would make him more prone to a fracture than falling on a flat surface.

Now isn't that exactly what I asked you?

Mr. Thomas R. Mcnamara: Your Honor on its face it is and if -- if that should have been pointed out by me I apologize.

I don't read it that way and I'm so familiar with this record --

Chief Justice Earl Warren: If you read if your --

Mr. Thomas R. Mcnamara: -- reading the whole --

Chief Justice Earl Warren: -- read that question and answer your way.

Mr. Thomas R. Mcnamara: No I can't read it in any different words but I mean if you read the entire testimony of Doctor Thiemeyer, his reference here to a fracture in that person being more prone to a fracture.

He is referring to a fracture of the metatarsal and he -- his other statements would bare that out which is the co-words here I don't deny at Court.

Justice Hugo L. Black: Just imagine as you start to read.

I don't see it in the brief, do you mind?

Mr. Thomas R. Mcnamara: Its in my --

Justice Hugo L. Black: In this Court where I get (Inaudible) --

Mr. Thomas R. Mcnamara: -- at page 13 it's in my brief.

Justice Hugo L. Black: Yes I did see that in the interim.

Mr. Thomas R. Mcnamara: The point is this, plaintiff complains that there were an insufficient number of brakemen and that they were unqualified and that by reason of this he had to be up on top of this car from which he ultimately fell and that therefore that contributed to his accident.

The exact same point was dealt with in atlan -- in Reynolds against Atlantic Coastline 336 U.S. and the Court held there in one simple point determinative of that entire case that factors which caused if one to perform his ordinary duties to which he is accustomed cannot with reason be said to be causative of an unexplained fall -- falling of course in the course of performing those duties.

In the Atlantic Coastline case there was a brakeman who -- well my red light is on and --

Chief Justice Earl Warren: Well you might finish your statement just whatever it might be Mr. McNamara.

Mr. Thomas R. Mcnamara: In the Atlantic Coastline case then there was a brakeman whose duty was to give certain signals.

He normally gave them from the sixth car up ahead because the railroad had negligently allowed certain (Inaudible) to go along his right of way, he was required to cross from the sixth car to the seventh car this time in order to give his signals and he fell while making that crossing.

There was further evidence that if he had had more brakemen he wouldn't have to make that trip anyway.

And he raised those two points as evidence of negligence and causation in his suit against the railroad and in this action it was held that there was no such evidence.

Justice Potter Stewart: Mr. McNamara before you sit down I don't know and I didn't quite catch your answer to the petitioner's point about the overall resulting atmosphere of haste in this operation.

Mr. Thomas R. Mcnamara: The answer to that was twofold, one he wasn't hurrying.

Justice Potter Stewart: He what?

Mr. Thomas R. Mcnamara: He was not hurrying.

He did not in fact abandon any safety precaution.

He took everyone that he could.

Justice Potter Stewart: I'm not talking about the specific state to this point I mean specific rules now on the railroad, I'm talking about the -- about the general atmosphere of urgency and pressure and haste that created the situation to (Inaudible)

Mr. Thomas R. Mcnamara: If it pleases the Court at -- those are the words of the plaintiff's counsel those are not the words of the plaintiff, those are not found in the records, they are found in the briefs but not in the record.

The evidence is that the -- the man was supposed to do something a certain time.

The theory upon which the plaintiff relies in that respect is that his orders required him to abandon safety precautions.

The defense is that he didn't abandon safety precautions and that his orders in fact did not require him to do so.

Justice Potter Stewart: And that now secondary to this other counsel that he pointed out there is no indication in the records that the man was hurrying or running in his (Inaudible)?

Mr. Thomas R. Mcnamara: The answer to which plaintiff's counsel referred was given by a witness, a brakeman who watched the plaintiff come along the tops of the cars and then watched him start down the ladder then he disappeared from this witness's view.

That witness did not say he was hurrying along the ladder.

He didn't say he was hurrying when he got down the ladder.

The question was, what was he going to do then?

And he said, he was going to run up to another position and then walk up to where I was and that was the word run as in that -- that was referring to something that that witness thought this man might have been going to do after he fell but there was no evidence as to what he was doing at the time he fell.

Justice William J. Brennan: Well Mr. McNamara I just -- I think Justice Black referred to this page 42 just below what you -- right at 42 below as to what you referred us to -- well I've no -- I'm sorry its page 22, where again I guess the petitioner says he's testifying the man gave me the list and he knows that the job cannot be done in 30 minutes and instructed me that I'll have to have this to be set up did not tell you to do it in a certain time if it meant you had to do it in an unsafe manner, did he?

He meant for me to do it in -- by 30 minutes and down below he gave me the list and instructed me that the job was to be done in 30 minutes while the Ford men are at lunch.

That was breaking a safety rule, telling me that the job was to be done in 30 minutes.

You've never been told to abandon safety precautions by anybody in Virginia Railroad or have you; speaking plain out, no sir.

Now might the jury infer from that that the -- even though he wasn't told in terms to break safety rules that that was the effect of it?

Mr. Thomas R. Mcnamara: Your Honor the record is a little confusing on this point at that -- on this particular point.

This man was given these instructions a month before this accident happened.

He wasn't handed a list and said, do this today in 30 minutes and those -- and the list include something which was impossible to be done at that time.

He was given a general instruction to do this while the Ford people at lunch.

Other conductors had been given the same instructions before him.

Sometimes it was possible, sometimes it was not, sometimes they did it in that time, sometimes they didn't.

When they didn't there was no recrimination.

They received extra overtime pay and the understanding from reading the entire testimony on that point was clear between the employees and their employer that they were certainly not required to do anything to meet any time schedule which would have forced them to abandon any safety precautions.

The one conductor who testified as to past history said, we're never required to do anything more than we were to operate safely.

Justice William J. Brennan: But by standing alone doing nothing else in the -- would that testimony justify submission of the jury whether there was or was not an instruction to do this without regard to safety?

Mr. Thomas R. Mcnamara: Your Honor I don't question the fact that -- I think probably it would.

I don't think it's under the -- this record would constitute a jury question of whether that caused a concern because in fact he wasn't hurrying.

Justice William J. Brennan: Well what are you saying?

Mr. Thomas R. Mcnamara: He was not hurrying, he was not -- he did not abandon any safety precautions.

Justice William J. Brennan: You mean when he was descending this ladder?

Mr. Thomas R. Mcnamara: Yes when he was walking along those box cars to get ready to do what he was engaged in doing when he fell.

Justice William J. Brennan: But wasn't the testimony that was quite for a requirement that this be done within this time he would not have been on the box car but rather would have been working from the ground --

Mr. Thomas R. Mcnamara: Yes there was and in that -- in reference to that point that not -- not the testimony that but for this regulation but testimony was a but for the inadequate number of employees and their lack of experience he would not have been on this car.

Justice William J. Brennan: And that's not because he even had to work or supervising from the ground is that it Mr. McNamara or would --

Mr. Thomas R. Mcnamara: Well he said that -- I believe he said and some other conductors said that if -- if he had more brakemen he wouldn't have been on the car in the first place, that was his testimony.

The fact is that he had as many brakemen as it had ever been on that job and the fact remains that merely because he was up on the box car where he normally and customarily was during the course of his duty is not considered causative of his falling off.

Chief Justice Earl Warren: Mr. Howell.

Rebuttal of Henry E. Howell Jr.

Mr. Henry E. Howell Jr.: If the Court pleases I think that the confusion of counsel in interpreting the record shows that it's uniquely a jury trial here.

One thing that I stated in my opening address was that on page 52 of the record the reason why Mr. Davis was going the way he was, was stated by Pennington.

Pennington had never before done this job and he says whose duty it is to spot cars?

It's me and do you know why Davis was coming back?

He was coming back there with me to show me where to spot cars.

That's the very involved movement he didn't know what to do and that's clear in the record if Your Honors please.

Now on -- on the haste that my man was put on down on page 13 he testified, I was going to get down and go through to rush on where more or less rush to the end of the car where Pennington was and then we come to Mr. Whitehorn who is an assistant yard master and he describes his job, the climate of this job so vividly when he says on page 35 and that is it really -- it puts the conductor in the middle when he's got two new brakemen.

And I say that the Federal Employers Liability Act does not anticipate that a work request to accommodate a customer will put a yard conductor or a brakeman or anyone else in the middle.

Justice William J. Brennan: Where in that page 35 did you say?

Mr. Henry E. Howell Jr.: 35 yes if Your Honor please the yardmaster's testifying to that there that it is two ways of looking at this thing, two ways of answering it in order to try to satisfy the Ford – at Ford Plant they do a little rushing and that he goes on his last remark he said, puts the conductor in the middle and that's just where this poor fellow wound up, in the middle because the dilemma here if the railroad attorney says, did you violate a safety rule he has lost his job.

They bring him up before the disciplinary board so he never can say in open court I violated the safety rule.

He says that I -- I was doing what I could the best I could but it's impossible to do this job safely in 30 minutes.

Now if the Court pleases I don't want to leave without clarifying one thing about the practice of this claim agent sending people to this railroad doctor.

On page 7 of the record, the head claim agent says, the question is, is it one of your duties to select the company physician and he almost let the cat out of the bag.

Now listen to this answer if Your Honors pleases.

Answer - and he works -- he started to say, he works for me but he stopped.

He works, he reports to the claim department to me yes sir.

And is it your duty to select him?

Yes, and then for example do you give instructions to superior employees, have you given oral instructions to them that when a person is hurt to take them to Doctor (Inaudible)?

No I don't do that directly.

It is just kind of a general understanding and it is a part of the rules.

If Your Honor please, the control of that doctor who is not adhering to the typical client-patient relationship brings an advantage to the railroad and if Your Honor please for every advantage there's a disadvantage and the disadvantage here, if they're going to control the doctor they're going to be responsible for his improper actions thank you.