BASHAM v. PENNSYLVANIA R. CO.

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Argument of Ira Gammerman

Chief Justice Earl Warren: Number 512, James Basham versus Pennsylvania Railroad Company.

Mr. Gammerman.

Mr. Ira Gammerman: Mr. Chief Justice, members of the Court.

This is a Federal Employers' Liability Act case, which was tried initially in the Supreme Court of the State of New York, Kings County before the court and jury.

The jury returns the verdict in favor of the petitioner in the amount of $15,000.On the respondent's motion the trial judge set that verdict aside and also granted respondent's motion to direct the verdict for the defendant, the Railroad.

An appeal was taken to the Intermediate Court of Appeals, the Appellate Division of the State of New York.

And that court affirmed the action of the trial judge by a vote of four to one.

A further appeal was taken to the Court of Appeals in Albany.

That court affirming the action of the trial court unanimously.

As I've mentioned this is a Federal Employers' Liability Act case.

The petitioner at the time of the accident was an employee of the Pennsylvania Railroad, the respondent.

The accident occurred in January of 1956.

The petitioner was working for the respondent as a car repairman helper in the respondent's Sunnyside Yard in New York City.

In those yards the respondent maintains wheel pits.

These are pits which are used by respondent's employees to remove old wheels from railroad cars and install new ones.

The pit itself is very similar to a grease pit underneath an automobile.

That is, if they cleared out the space between the running rails on which the railroad car sits so that the men can get down into the space from three or four feet and work beneath the car.

The wheels are replaced by moving the car over the pit and rolling underneath the car a movable hoist to a jack which is attached to a movable platform which rolls at the bottom of the pit.

The hoist is then raised to the level of the wheels.

The wheels are disconnected from the car, lowered to the bottom of the pit and rolled out.

The old wheels are replaced by new wheels which are again rolled underneath the car on this movable platform and raised by the hoist to the point at which they can be securely and firmly affixed to the railroad car.

It was the job of the petitioner to assist in this operation being performed that one of these three pits.

That his job at the time of the accident was to stand on this wooden movable platform and hold with both hands a rather heavy spring as the new wheels were being raised to be placed in position where they could be securely affixed to the car.

As he was doing this, the platform on which he was standing suddenly shifted or moved causing him to lose his balance.

Justice Potter Stewart: That's the question in the case (Voice Overlap) --

Mr. Ira Gammerman: That's correct.

The --

Justice Potter Stewart: (Inaudible)

Mr. Ira Gammerman: The petitioner put out his hand to regain his balance when the spring that he had formerly been holding jumped out and fell on his hand then he sustained the injuries.

I think it's important to the case and the issues to discuss just for a moment the apparatus that was being used.

Starting from the top and down there is the railroad car which sits on the rails which straddle this pit.

Extending down from the body of the car and attached to the car are two pedestals or a pedestal linings, I'll refer to them as pedestals.

These are U-shaped receptacles into which a portion of the wheel assembly which is being raised from the bottom of the pit fits.

Justice Potter Stewart: Do they show on these pictures (Voice Overlap) --

Mr. Ira Gammerman: Yes.

Yes Mr. Justice Stewart.

They are shown in the plaintiff's Exhibit 1 on page 113.

That's a photograph of the wheel pit of the car and the pedestals, the pedestals are the U-shaped receptacles extending down from the body of the car.

This incidentally is a photograph taken after the wheels have been fully installed and secured, that is attached to the car.

Justice Potter Stewart: I must say I can't find the U-shaped receptacles here.

Mr. Ira Gammerman: Well, it's a little -- it's somewhat difficult on that photograph to see it.

Perhaps you can see better on page 117, which is defendant's Exhibit B, which shows the receptacles at a point at which the wheels were being raised into the position to which they will be secured to the car.

You see that there's -- there are some chalk letters SS Smith on one side of the receptacle.

Justice Potter Stewart: Go ahead.

Mr. Ira Gammerman: Now, into these receptacles as being raised, the wheel assembly, the wheel assembly consists of a -- an axle with two wheels, one wheel on each end.

And outside of each wheel is a journal box, which is a lubricating device.

That's the device that's apparent on page 113, on the outside of the wheels just above the rail on the photograph, plaintiff's Exhibit 1.

Now that wheel assembly is being raised by a lift.

The lift consists of a vertical member and a crossbar or tee at the ends of which are two V-shaped prongs into which the axle fits.

The crossbar is attached to the upright portion of the lift by a nut.

And there's motion at that point that is the bar on which the wheels rest can tip.

Now, as the wheels are being raised, the journal boxes, that is -- these lubricating boxes on the wheel assembly slipped into the receptacles and are raised further and further into the receptacles until they fit all the way up into the receptacles and it -- at that point, that the wheels are secured to the car.

Now, that certain --

Justice Potter Stewart: Are these --

Mr. Ira Gammerman: -- point --

Justice Potter Stewart: -- receptacles a permanent part of the railroad car --

Mr. Ira Gammerman: That's right.

Justice Potter Stewart: -- or are they just used --

Mr. Ira Gammerman: They are permanently affixed to the car.

Justice Potter Stewart: -- to this operation.

Mr. Ira Gammerman: I beg your pardon?

Justice Potter Stewart: They are a permanent part of the car?

Mr. Ira Gammerman: Yes.

Justice Potter Stewart: Not just one of the tools used in this operation?

Mr. Ira Gammerman: No.

There are -- there are certain facts which are not disputed.

There was a movable platform.

That is the platform on which the petitioner was standing was movable.

It could move some 11 feet in one direction and some three inches in another direction.

Unknown Speaker: That's what the pictures showed?

Mr. Ira Gammerman: The platform?

No.

I think the -- the only photograph that gives some sort of hint of it is on page 116, which shows the crossbar.

Unknown Speaker: On these bars?

Mr. Ira Gammerman: That's correct.

That crossbar goes down some three or four feet and is attached to a movable platform.

That's the platform that the petitioner was standing on at the time of the accident.

As I said, there's no dispute that there was motion at the point shown in defendant's Exhibit A on page 116 marked with the initial “N”.

That's the nut that attached to the crossbar to the upper right portion of the hoist.

It was -- there's no dispute that at the time of the accident the wheel assembly had been raised to a point where the journal boxes were partially inserted into these pedestals.

I believe there were in about one quarter of the way.

There's no dispute that they have not been fully raised and that the wheel assembly had not been as yet firmly secured to the railroad car.

And there's no dispute that there was some motion possible at the ends of the wheel assembly even after the journal boxes were inserted into the pedestals.

It's the extent of this motion that constitutes the issue of fact that was raised between the parties.

Now as I've said, the petitioner testified that as he was standing on the platform during this operation it suddenly shifted.

He also testified that there was motion both at the juncture of the upper right and the crossbar and motion at the ends of the axle when the journal boxes were inserted into the pedestals.

A mechanic, employed by the respondent some seven or eight years working in these pits, also testified.

And testified that at the time of the accident, he too saw the platform on which the petitioner was standing moved.

He testified that the motion was present at the two points that the petitioner testified to.

And he testified that because of this very situation, he himself at a safety meeting held before this accident had complained about this condition to the foreman, that is the railroad foreman.

And that in response to the complaint, a safety device in the form a hook-and-eye had been stalled in one of the three pits in the yard to hold the platform in position, but that no safety device or no clamp or hook-and- eye had been installed in this particular pit.

So the Railroad counted the testimony by producing one of its assistant foreman who testified as an expert but testified solely based on his experience, that is, he was not an engineer and brought no engineering background to his testimony.

He testified that in his experience, there was not this one to two inches of movement as testified by the petitioner at the point at which the journal boxes were inserted into the pedestals.

But that the movement was only a quarter of an inch.

And that therefore in his opinion, the movement was limited to a quarter of an inch at the platform level and that the platform could not move.

That's a -- disputed fact was raised with respect to the snugness of the pit, the snugness of the pit between the journal box and the pedestals.

The Railroad assistant foreman testified that the pit was quite snug indeed.

The petitioner and the mechanic testified that the pit was not quite as snug as testified by the railroad foreman, it was some one to two inches.

I submit that this was a disputed fact which was resolved by the jury in favor of the petitioner.

But the trial court however, resolved the dispute otherwise.

Justice John M. Harlan: How many judges have passed on this?

There are seven in the Court of Appeals --

Mr. Ira Gammerman: And five in the Appellate Division.

Justice John M. Harlan: Five in the Appellate Division.

Mr. Ira Gammerman: Yes, Mr. Justice Harlan.

Justice John M. Harlan: (Inaudible)

Mr. Ira Gammerman: That's correct.

Justice John M. Harlan: (Inaudible)

Mr. Ira Gammerman: I want to point out however that the -- the only opinion that was written in this case was the opinion of the trial judge who cited not one Federal Employers' Liability Act case.

He cited --

Justice Hugo L. Black: How many ju -- how many jurors are present?

Mr. Ira Gammerman: The verdict, it was 11 to one in favor of petitioner.

All 12 agreed as to the verdict, 11 agreed as to the amount.

It was the 12th ju --

Justice William J. Brennan: (Inaudible)

Mr. Ira Gammerman: That that --

Justice William J. Brennan: (Inaudible)

Mr. Ira Gammerman: I think we're even.

We figured that out before we came here.

Justice Hugo L. Black: Which one of them -- which one of them had the most experience in mechanics in a -- even with railroad and things out to -- where the people lived (Inaudible)

Mr. Ira Gammerman: I really don't recall Mr. Justice Black.

Justice Hugo L. Black: You -- you didn't take evidence on this?

Mr. Ira Gammerman: No.

Justice John M. Harlan: (Inaudible)

Justice Hugo L. Black: I have -- I have 12 jurors and one judge.

Justice John M. Harlan: (Inaudible)

Justice Hugo L. Black: Well, I actually had 12.

One jury didn't want give him this much money.

That was the --

Justice John M. Harlan: (Inaudible)

Mr. Ira Gammerman: The trial court -- and that's the only opinion, we have decisions of both the Appellate Division and the Court of Appeals.

But the trial court obviously, if you -- on reading it's -- on reading it's opinion, resolved an issue of fact.

The -- and I think the trial court recognized that because when the respondent's attorney moved that the conclusion of the plaintiff's case, that's on page 54 of the record, there was a motion made to dismiss the complaint.

And the respondent's attorney argued to the trial court that the platform could not move because the journal box has been partially inserted into the pedestal.

The trial court stated, and I'm quoting, “I have witnesses who came here and said that it moved and could move.

Now, if you have expert testimony to the contrary, that may become an issue of fact.”

Well, the Railroad did have expert testimony to the contrary.

And that did become an issue of fact.

And I submit that that's all it was.

It resolved one way by the jury, the opposite way by the trial court.

The trial court was obviously evaluating the credibility of the witnesses here.

The opinion of the trial court deals at some length with a test -- a statement introduced by the respondent taken from the mechanic, that was the man in charge of the pit who said that the platform moved, he saw it moved, and that -- there was sufficient mobility or movability, or play, that is the pit was not as snug as the foreman had said it was.

And the trial court in characterizing the statement and I'm reading from the trial court's opinion, which is on page 124 of the record, stated, “Further, the testimony of the -- of petitioner's fellow employee”, that's the mechanic, “was directly contrary to his prior written statement given immediately after the accident in which he blamed the accident on petitioner's carelessness and exculpated the defendant railroad from any negligence.”

The trial court also in its opinion stated that the Railroad's evidence that the platform was immovable was not rebutted by petitioner when the fact was that petitioner testified specifically an answer to questions on a cross-examination by the Railroad counsel, that the platform was movable, that the journal boxes, when they fit into the pedestals, did not fit that snuggly, and that the mechanic had testified to the same effect.

The Appellate Division, although it wrote no opinion, published a decision and the decision picks up the language of the trial court and states that there was uncontroverted proof that the platform could not move.

I submit that the trial court and both the appellate courts were in effect weighing the credibility of evidence in doing what this Court has said in Lavender against Kurn, “Is an undue invasion of the province of the jury.”

The decision of the Court of Appeals of the State of New York, which appears on page 15 of the petitioner's appendix, deals at considerable length with the so-called contradictory statement.

As a matter of fact, the statement is almost completely summarized in the Court of Appeals decision.

I've cited in my brief, the cases of this Court, dealing with this question, that is Lavender against Kurn, Wilkerson against McCarthy, the Rogers case, the Schulz case, and this Court within the last 30 days or so has decided at least two cases on this very point, the Gallick case and the Harrison case.

The Court has repeatedly held that the fact issues which are raised in this F.E.L.A cases are to be resolved by the jury, not by the trial court and not by the appellate courts.

Here, the trial court and the appellate courts weighed the testimony and resolved these fact issues in favor of the Railroad.

The jury came to the opposite conclusion and I submit that it's the jury's decision on these fact issues that should stand.

Chief Justice Earl Warren: Mr. Gammerman.

Argument of David J. Mountan, Jr.

Mr. David J. Mountan, Jr.: Mr. Mountan.

Chief Justice Earl Warren: Oh, this is Mr. Mountan.

Mr. David J. Mountan, Jr.: Yes sir.Mr. Chief Justice, and may it please the Court.

At the outset I would like to point out that the record in this case at page 100 indicates that the verdict is 11 to one for the plaintiff in the sum of $15,000.

There is nothing in the record to indicate that there were 12 jurors for the plaintiff in this case and I would like to point that out to the Court.

Justice Arthur J. Goldberg: Perhaps, you kept it on the record on what the fact was?

Mr. David J. Mountan, Jr.: I don't recall what the fact was.

Actually, Your Honor, I do recall that we spoke to the jurors afterwards.

It was not my recollection that the 12 juror was for the plaintiff.

There is a very interesting story as to how the jurors arrived to this verdict but --

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Mountan, Jr.: Not --

Justice Arthur J. Goldberg: Did you say it doesn't (Inaudible) is not in the record?

Mr. David J. Mountan, Jr.: That is correct.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Mountan, Jr.: That is correct Mr. Justice Goldberg

Justice Arthur J. Goldberg: -- and you don't go beyond that.

But I thought (Inaudible)

Mr. David J. Mountan, Jr.: No sir.

Justice Arthur J. Goldberg: In fact, it's not --

Mr. David J. Mountan, Jr.: That it is.

Justice Arthur J. Goldberg: -- not in the record?

Mr. David J. Mountan, Jr.: It is sir.

There are two questions in the position of the respondent in this case which are to be decided by this Honorable Court.

The first is whether or not the platform in fact did move.

The second is, assuming for the moment that it did move, was it reasonably foreseeable that the platform could move and would move in such a way as to cause a petitioner such as the one in this particular case, harmed?

And I point to the very reason of the decision of this Court in the Gallick case in which the Court held that reasonable foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence.

As to the first question, was there sufficient evidence to support a jury finding that the platform on which the petitioner was standing moved?

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Mountan, Jr.: I have none.

I have none Your Honor.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Mountan, Jr.: Absolutely.

I have --

Justice Byron R. White: Well, have they met foreseeability to this?

Mr. David J. Mountan, Jr.: Well, I believe --

Justice Byron R. White: (Inaudible)

Mr. David J. Mountan, Jr.: Yes.

I don't believe that there was a specific charge in foreseeability as such but certainly it was with -- included within the --

Justice Byron R. White: Would you (Inaudible)

Mr. David J. Mountan, Jr.: No, I did not.

Not on that point Mr. Justice White.

Now, insofar as the first question is concerned, was there sufficient evidence?

As petitioner's counsel has pointed out, the petitioner, a car repairman helper in the employer, the respondent Railroad, was working with three other employees in the number three wheel pit of the respondent's Sunnyside Yard in Long Island City at approximately 2:15 a.m. on January 7, 1956, engaged in changing a pair of wheels on a passenger car.

At pages 114 to 120 of the record are printed photographs of the type of equipment involved in the operation which the petitioner and his fellow employees were engaged in.

The various photographs show various of the stages involved in the operation of changing a set of wheels.

And I might point out that the photographs themselves are, in my humble opinion, the most convincing evidence that we have in this case, that the platform did not in fact move.

I refer to plaintiff's Exhibit 2, which is printed at page 114 of the record.

This is a photograph which shows either the work completed or the work not having started except that the gate rail has been swung open to permit the wheels to be taken from the car.

Justice Hugo L. Black: This of course has not been -- this is a photograph of another?

Mr. David J. Mountan, Jr.: It's a similar car Mr. Justice Black.

It's the same type of car that was involved in this accident.

We can see both of the journal boxes in the petitioner's Exhibit 2.

We can see both of the helical springs which are on the truck of the car.

We can see the truck frame and the pedestal lining which lines the arch into which the journal box fits.

And in res -- in petitioner's Exhibit 2, we can see that the flanges on either side of the journal box on the outside of the truck are sliding along the pedestal lining and are in a position where the entire flange is alongside of the pedestal lining, and where the bottom of the flange is considerably above the bottom of the pedestal lining.

We can also see that the equalizer bar which -- on which both of the springs rest has fit into a groove on the top of the journal box itself.

Respondent's Exhibit A printed at page 116 of the record shows the type of hoist involved in the operation but before being raised to the axle of the wheels.

It will be seen in this photograph that the wheels over the hoist are still on the rails.

This photograph shows a portion of the piston.

And this piston admittedly, is physically and permanently attached to the platform.

It shows the crossbar with the prongs or forks at either end which fit on the axles of the wheels with the highest point of the forks farthest away from the center of the hoist.

It also shows the nut and bolt marked with an “N” by which the horizontal bar is attached to the cylinder portion of the air hoist.

The respondent concedes that with the platform in this position, it can move laterally from side to side.

The testimony of the petitioner's witness was that with the pair of wheels on the hoist it took four men to move the platform.

So that we can see it's not something which readily moves.

The wheel, the set of wheels weighs approximately 3100 pounds plus the weight of the platform and the hoist itself, the testimony was that it took four men to move it one way or the other.

Respondent --

Chief Justice Earl Warren: Their testimony is to how far it could move on those circumstances?

Mr. David J. Mountan, Jr.: Yes sir.

It can move the -- pit itself was twenty-three feet in length.

The platform, I believe was twelve feet in length so that it was approximately eleven feet of movable distance, which is required in order to take the platform with the wheels out, put a crane down to take one set of wheels off, replace the wheels with the crane, and then move it back under the car so that the new set of wheels can be applied to the car.

In other words sir, the platform itself had to come out from underneath the car so that the wheels could be physical removed from the platform and a new set applied.

Respondent's Exhibit B, which is printed at the 117 of the record, and this shows a truck assembly with the type of journal box involved in this case.

The journal box has moved up into the pedestal lining and the position that was in shortly before the petitioner and its mechanic put the coil spring in the cup.

This photograph, respondent's Exhibit B, clearly shows the pedestal linings which line the sides of the arch of the truck.

We also see the grove at the top of the journal box into which the equalizer bar fits.

In this photograph, the journal box has not yet moved up to the position where the equalizer bar has fitted into the grove.

This photograph also shows the flanges of the journal box on the outside of the journal box.

There are similar flanges which slide along the pedestal lining, the same pedestal lining of the same truck on the other side of the same journal box, that is on the side of the journal box closest to the wheel itself.

This also shows the journal box fitted into the arch of the truck.

Exhibit B of course shows only the wheel and journal box on one side of the car.

There was a similar journal box with its flanges and similar pedestal linings on the other side of the car.

In other words we can only see two flanges on the outside of the car.

There are in fact four flanges for each journal box and two journal box for each set of wheels so that in fact we have eight flanges that are involved in moving this one set of wheels up into the pedestal lining.

Respondent's Exhibit C is a photograph printed at one -- page 118 of the record.

This shows the same equipment with the journal box now moved up further into the pedestal lining and with the equalizer bar now in the grove at the top of the journal box.

This was concededly the position of the equipment just at the time that the petitioner and his mechanic put this spring seat and that's the spring seat which is shown in respondent's Exhibit B printed at page 119 of the record, in the place designed for it on the equalizer bar and then inserted the coil spring into its position between the equalizer bar and the underside of the frame of the truck.

It will be noted that at this time and this is the time just before the helical spring was inserted into the cup.

The entire length of the flanges have moved up to a position along the pedestal linings where the bottom of the flanges are some distance from the bottom of the pedestal lining.

Respondent's Exhibit E is a photograph printed at page 120 of the record.

This photograph concededly shows a man holding the helical coil spring in approximately the same position as the petitioner claims to have been holding the helical spring at the time of this accident.

We can see that the spring seat is in position on the equalizer bar and the coil spring is in the cup on the underside of the frame and in the cup of the spring seat.

It is the contention of the petitioner that while he was holding the helical spring in the position shown in this photograph, respondent's Exhibit E, printed at page 120.

And while the air hoist was moving the set of wheels further up into the truck, he saw the platform move.

It is the respondent's position and has always been the respondent's position that this testimony is incredible.

This was at 2:15 in the morning.

The testimony was that there were lights shining down on the men working in this pit but that there were no lights at the bottom of the pit.

You will note in the photograph that in holding the helical spring, the man is directed towards the car and I say and it has been our position throughout that to say that this man saw the platform beneath him move is incredible.

And it's interesting to note that neither the petitioner nor his mechanic at anytime said, “How much it moved?

In which way it moved, whether it moved up, down, sideways or whether it merely vibrated?”

All they testified to is movement.

And I say and it has been our position throughout that in the position that this equipment was in, the platform could not move.

Justice John M. Harlan: Is this mechanic Harper?

Is that Mr. Harper, the --

Mr. David J. Mountan, Jr.: It is, Mr. Justice Harlan.

Yes sir.

This -- the -- Harper was in a position and the record is not exactly clear as to just where he was.

He was at some place in the pit operating the apparatus to raise the piston and nearby the wheels into the position of -- in the car in which it was ultimately going to go.

And he also testified that he saw the platform moved or he said he saw the table move a little.

He also testified that he didn't know which way it moved or how much it moved.

The only thing we have is that there was movement.

Whether it was a vibratory motion, whether it was side to side motion, whether it was an up and down motion, there was nothing in the record to indicate.

Justice Arthur J. Goldberg: What's your theory on how this accident occurred?

Mr. David J. Mountan, Jr.: My theory is very simple one Mr. Justice Goldberg and that is this, following this accident, this -- the petitioner was interrogated by his gang foreman as to what happened.

And you will note that in defendant's Exhibit E, the man is holding the helical spring with two hands.

What I believe the petitioner was doing was holding the helical spring with his right hand and holding his left hand on the gate rail which is swung open and which is shown directly below the man.

And that -- when this -- a bar moved up, holding it with one hand, the testimony is that you cannot hold it properly with one hand, that you must hold it with two.

That as he was holding it with one hand, as it went up to go into the seat on the truck of the frame, it kicked out and that he was not able to hold it with one hand, and as a result of that it came out and struck him on the finger, on the hand which was resting on the gate rail.

Justice Arthur J. Goldberg: Is it your theory that the (Inaudible)

Mr. David J. Mountan, Jr.: My theory is both that -- my theory is that there was no negligence on the part of the railroad.

This was the ordinary way in which this was done.

It was the way it had been done for years.

That is holding it with both hands and that the man himself was the sole cause of this accident by failing to properly hold the -- and give his attention, his entire attention to holding this helical spring as this was being moved up into position.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Mountan, Jr.: Well, may I say this Mr. Justice Goldberg.

If they found that there was movement and if they found that there was reasonable foreseeability of such movement as would cause injury, then yes, the fact that he was holding it with one hand would only go to the question of damages

Yes sir.

Chief Justice Earl Warren: Is there a testimony that he only held it with one hand?

Mr. David J. Mountan, Jr.: There is a testimony by the foreman Genova (ph) that the petitioner told him that he was holding it with one hand.

There is no testimony, direct testimony.

The petitioner himself testified that he was holding it with both hands.

But the -- immediately after this accident occurred, Genova (ph) who has the gang foreman of the petitioner interrogated the petitioner as to how the accident happened.

Justice Hugo L. Black: Suppose the jury believed contrary to your argument, this man did see this thing did move, would you still say that there's no question for the jury?

Mr. David J. Mountan, Jr.: Well, my position Mr. Justice Black is two-fold.

First, we contend that there was no movement.

Now, if the jury found movement, this we believe would not be sufficient to establish responsibility on the respondent.

There must be movement and according to the recent pronouncement in the Gallick case, which reaffirmed previous opinions, there must be a reasonable foreseeability of harm.

Justice Hugo L. Black: Well, is that an issue in this case?

Mr. David J. Mountan, Jr.: Reasonable foreseeability of harm?

Oh, very definitely, very definitely.

That's the second point to which I'm arguing before the court.

And I will -- I think I will be able to demonstrate that even assuming that there was movement, which I don't see how it was possible, even assuming there was, there was certainly no reasonable foreseeability that there would be movement.

My position is this that if we have testimony --

Justice Hugo L. Black: No reason for foreseeability that there would be movement and no reasonable foreseeability that it would injure, which is (Voice Overlap) --

Mr. David J. Mountan, Jr.: That would -- there would be harm, that there would be harm.

I believe that there must be two.

There must be a reasonable foreseeability of movement and reasonable foreseeability of such movement as would cause harm.

There are many times in the operation of a railroad when the railroad knows that there would be movement during a particular operation.

For example, in operating a train when the train operates there was movement.

But there must be an addition to that reasonable foreseeability that harm will result from such movement.

Chief Justice Earl Warren: I understand that petitioner said that in adjoining pit, the hook-and-eye arrangement was used to lock the hoist platform in place so it would not move.

Mr. David J. Mountan, Jr.: That was the testimony --

Chief Justice Earl Warren: Yes.

Mr. David J. Mountan, Jr.: -- of the petitioners witness Harper, --

Chief Justice Earl Warren: But --

Mr. David J. Mountan, Jr.: -- Mr. Chief Justice.

Chief Justice Earl Warren: -- there was no such -- there -- was there any such hook-and-eye arrangement in this pit?

Mr. David J. Mountan, Jr.: There was none, sir.

Chief Justice Earl Warren: Was there one in the other pit?

Mr. David J. Mountan, Jr.: That for a time there was, yes sir.

Chief Justice Earl Warren: For a time there was.

Why wasn't there one in this?

Mr. David J. Mountan, Jr.: The record does not show why there was none in this and the record shows that from the -- from Mr. Brunner who was the expert of the respondent that the reason that that was put in there was so that the platform would be in position when the men came to work.

Now it may have been and the record is completely devoid of any information on this.

I can merely assume that there was some particular reason for putting it in 2, and not for putting it in 3 and 1 because the -- Harper, who has petitioned as mechanic, testified that the complaint was made as to 2.

There is no evidence that any complaint was made as to 3 nor as to 1, which were the other two wheel pits.

Chief Justice Earl Warren: In other words, there had -- they had a safety device in one and did not have one in the other.

And the mechanic called it to the attention of his superiors but nothing was done about it.

Is that a fair observation?

Mr. David J. Mountan, Jr.: No, I don't believe --

Chief Justice Earl Warren: What is unfair about it?

Mr. David J. Mountan, Jr.: Well, because the witness, Harper, testified that he called the attention to Genova (ph), which by the way Genova (ph) denies but that's an issue of fact.

Chief Justice Earl Warren: That's an issue of fact.

Mr. David J. Mountan, Jr.: He called the attention to Genova (ph) that the -- they required something in number 2 wheel pit to prevent motion.

Chief Justice Earl Warren: Yes.

Mr. David J. Mountan, Jr.: However, there is nothing to indicate that to prevent motion at the time that this operation was taking effect because --

Chief Justice Earl Warren: Well, let's -- let's just say that -- talk about preventing motion at any time because it's contended here that this platform couldn't move.

Mr. David J. Mountan, Jr.: That is --

Chief Justice Earl Warren: And there was a safety device in the other to prevent it from moving at times when it was dangerous to those working there.

Why wasn't anyone in this one?

Mr. David J. Mountan, Jr.: There was -- there is nothing to indicate that it was ever requested with respect to this particular wheel pit, wheel pit number 3.

And may I --

Chief Justice Earl Warren: But I'm -- I understand from the record that the mechanic testified that he had told his supervisor about the danger of moving platforms and has called his attention to the absence of any device from preventing platform movement in pit number 3.

Mr. David J. Mountan, Jr.: No Your Honor.

There was no testimony of that at all.

The only --

Chief Justice Earl Warren: What was his testimony?

Mr. David J. Mountan, Jr.: The testimony was that he was working in wheel pit number 2.

Chief Justice Earl Warren: Yes.

Mr. David J. Mountan, Jr.: This happened in wheel pit number 3.

Chief Justice Earl Warren: Yes.

Mr. David J. Mountan, Jr.: That there -- that there was some motion, it's not -- there is no indication as to when this motion took place and as a result of his complaint which was denied by the way, as I said by the foreman, but as a result of his complaint, they put a hook-and-eye in wheel pit number 2.

The testimony further established that when they renewed the table in this same pit, pit number 2, they did not replace the eye on the -- on the table.

So that this became in disused and the evidence firmly established that when these pits were designed, there was nothing in the design of the pits that -- for any hook-and-eye.

And I think that if I may Mr. Chief Justice point out, that a hook-and-eye from its very nature would permit some motion, however slight, otherwise you would never be able to get a hook into the eye.

So that the hook-and-eye which was used was not designed to act in such a way that there could be no motion of any kind.

The testimony of Mr. Brunner was that it was put in so that when the men came to work, the pit -- the table would be in position for them to do their work.

Now, as I said I can only surmise why it was put in 2 and not -- and that no complaint was made as to 3 and 1.

But there is nothing in the record and so unless Your Honor wants me to, I will not give you why I think it was put in 2, and not in 3 and 1.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Mountan, Jr.: Essentially the same but I think I can give an explanation but it's not in the record, as to why -- why they would put it in 2 and not in 1, or 3.

Justice Arthur J. Goldberg: (Inaudible)

Mr. David J. Mountan, Jr.: My reason for thinking that they put it in 2 and not on 3 and 1 is that in 2, there may have some -- been some slight decline in the pit itself so that they had to have something that would hold this imposition before they got it raised up into the pedestal, otherwise it could slide downhill.

There was nothing to indicate that this was so in 3.

And I'm merely saying that that's -- is --

Chief Justice Earl Warren: Was there -- is there anything in there to indicate it was different?

Mr. David J. Mountan, Jr.: There was none sir.

Chief Justice Earl Warren: Well, then --

Mr. David J. Mountan, Jr.: That there was nothing to indicate that it was different other than -- the only complaint was made with respect to 2 and there was no complaint made with respect to 3.

Justice Hugo L. Black: Can I ask you just one question just to clear in my mind about E on page 120, this picture.

Mr. David J. Mountan, Jr.: Yes sir.

Justice Hugo L. Black: Do I understand that this coil is what the man was handling when you said he was hurt?

Mr. David J. Mountan, Jr.: That -- the what, sir?

Justice Hugo L. Black: This coil.

Mr. David J. Mountan, Jr.: Yes, that's correct.

Justice Hugo L. Black: How heavy was that?

Mr. David J. Mountan, Jr.: A hundred and nine pounds.

Justice Hugo L. Black: 109 pounds.

Mr. David J. Mountan, Jr.: Yes sir.

Justice Hugo L. Black: How many men was supposed to lift it?

Mr. David J. Mountan, Jr.: One --

Justice Hugo L. Black: One?

From what to what?

Mr. David J. Mountan, Jr.: Well, the two men, the mechanic and the petitioner put it into the seat.

You see it fits into a seat on the equalizer bar.

Once it's in that seat, then the petitioner, who was the helper holds it while the mechanic goes and lifts this whole apparatus so that it now puts tension on the spring.

Justice Hugo L. Black: Both of them are working on it at that time?

Mr. David J. Mountan, Jr.: Only one was working -- only one was working on the spring at the time of the accident.

If the man --

Justice Hugo L. Black: What made it fly out?

Mr. David J. Mountan, Jr.: I don't know sir.

Justice Hugo L. Black: What -- was it -- it was the coil?

Was it sort of flip out or?

There must have been some explanation in the evidence as to why it flew out.

Mr. David J. Mountan, Jr.: Well, the petitioner said that what happened is that the platform moved and he had to let go of the coil spring and that's what permitted it to come out.

The testimony --

Justice Hugo L. Black: So, why would it -- how much pressure did he have to put on it to hold it?

And why did he have to put pressure on it to hold it?

Mr. David J. Mountan, Jr.: If Your Honor -- Mr. Justice Black, we'll look at defendant's Exhibit C.

Justice Hugo L. Black: Where is it?

What page?

Mr. David J. Mountan, Jr.: That's on page 118 of the record.

Justice Hugo L. Black: Alright.

Mr. David J. Mountan, Jr.: You will see that the wheel as it comes up goes against a brake shoe and that when it goes against the brake shoe and the apparatus there, there is some pressure put on this coil spring and that is the reason why the men has to hold it with both hands so that it stays in place.

Justice Hugo L. Black: What makes the wheel bring it up so that there is pressure, what hold it?

Mr. David J. Mountan, Jr.: The whole apparatus of this 110 pounds of pressure being applied upward --

Justice Hugo L. Black: Upward on the wheel?

Mr. David J. Mountan, Jr.: The wheel moving up onto the brake shoe.

Justice Hugo L. Black: And it had a 110-pound pressure.

And this man was standing there trying to hold it in there.

Mr. David J. Mountan, Jr.: That's correct.

Justice Hugo L. Black: So why do you say that there'd be no evidence of foreseeability then that a man handling a 110-pound thing like that might slip out to either a 109-pound pressure.

Mr. David J. Mountan, Jr.: Well --

Justice Hugo L. Black: Wasn't -- couldn't it be foreseeable that he might get hurt.

Is this one -- if something they have in the way, he has to take his hand off it.

Mr. David J. Mountan, Jr.: Well, if -- if it please the -- Your Honor, I'm not saying that it was -- it would not be foreseeable if the -- if the -- that this might slip out.

But that was not an issue that was submitted to the jury.

The only issue that was submitted to the jury is was their negligence in not -- in permitting this platform to move.

Justice Hugo L. Black: But I understand you're defending on ground beyond that because I asked you what really happened if they actually saw it move and did move.

I understood you to say that wouldn't make out a case.So, there's no reason for the railroad to foresee that a man might got hurt -- might get hurt if the thing did move while the man was holding it.

Mr. David J. Mountan, Jr.: Well, it's not a question of the -- of the spring moving that the --

Justice Hugo L. Black: But it did move, isn't it?

Mr. David J. Mountan, Jr.: The spring actually did move.

Justice Hugo L. Black: It naturally moved out of there pretty fast.

Mr. David J. Mountan, Jr.: But that's -- that's not the negligence that the jury was charged with respect to, Mr. Justice Black.

Justice Hugo L. Black: Well, they were charged with negligently injuring him when that thing hit him, wasn't it?

Mr. David J. Mountan, Jr.: No.

The only negligence that the jury was permitted to find in this case was whether it was -- was the railroad negligent in failing to have some sort of a -- a brake or a hook-and-eye to prevent movement of the platform itself.

Justice Hugo L. Black: Alright, he carefully submitted the negligence charge, was that it moved.

You say that it didn't move.

Mr. David J. Mountan, Jr.: That's right.

Justice Hugo L. Black: Assuming that it did move, I understood you to go further and say the railroad had no reason to think if it did move, just like it did, that the man might not hurt somebody and they shouldn't guard against it.

Mr. David J. Mountan, Jr.: Well --

Justice Hugo L. Black: I understood you to say as a matter of law that you were asking to be held that the -- nobody could reasonably foresee it if this man might get hurt if the thing moved.

Mr. David J. Mountan, Jr.: That is correct.

Now, I'm not quite sure Mr. Justice Black when you say the thing moved.

Are you speaking of the helical spring moving or the platform moving?

Justice Hugo L. Black: Whatever moved and hit him.

What hit him?

Mr. David J. Mountan, Jr.: The helical spring hit him, but --

Justice Hugo L. Black: Right.

Mr. David J. Mountan, Jr.: But that's not --

Justice Hugo L. Black: And he says it hit him because the thing moved.

You say that there's no reasonable foreseeability on the part of the rail -- that the railroad couldn't reasonably foresee that if it did move, precisely as he said it did, and all the evidence showed it that you would still say that it couldn't have been foreseen that the men might get hurt.

Mr. David J. Mountan, Jr.: Well, Mr. Justice Black, I'm not sure that I quite understand the -- if you're speaking of the helical spring moving, this is not the foreseeability --

Justice Hugo L. Black: I understand --

Mr. David J. Mountan, Jr.: -- I was speaking of the platform.

Justice Hugo L. Black: -- that's not the movement charged but that's -- a movement also occurred.

There's no doubt that that movement occurred, isn't it?

Mr. David J. Mountan, Jr.: There was no doubt --

Justice Hugo L. Black: Alright.

Mr. David J. Mountan, Jr.: -- that the helical spring came out.

Justice Hugo L. Black: Alright.

Now, let's assume that is the (Inaudible) -- at the time that -- just before it happened, there was a movement of this other thing like they said, a sudden movement.

The man was there holding and it was a 109-pound operator -- operation.

Do you say that the railroad couldn't have reasonably foreseen if it left that thing there, subject, it was movable, it was moving, might move and knew that the man would be working on that heavy thing at that time, that they couldn't reasonably foreseen that the man might get hurt?

Mr. David J. Mountan, Jr.: No.

They could not reasonably foresee it Mr. Justice Black and may I just point out --

Justice Hugo L. Black: Yes.

Mr. David J. Mountan, Jr.: -- why?

If Your Honor will look at this apparatus that's being moved up into this truck and frame, that the movement which can occur is at most at anytime a quarter of an inch and that is only if four men or a comparable force got on the side of this and pushed it laterally (Inaudible).

Justice Hugo L. Black: So then, you are arguing -- you are arguing now that there's not enough evidence that it moved.I understand that -- I understand that argument but I was getting to the foreseeability.

Mr. David J. Mountan, Jr.: Well, I understand Mr. Justice Black.

But the point I'm trying to make is that the type of movement which at any time could possibly occur, it's the same as if I say, I stood against that pillar and pushed my head against it and I moved it two inches.

Certainly, the court would not accept my testimony to that effect even though it is some evidence.

And we must see what type of movement could possibly occur as to see whether or not this type of harm or any harm was foreseeable.

Chief Justice Earl Warren: But -- what hand was it that was injured?

Mr. David J. Mountan, Jr.: The left hand.

Chief Justice Earl Warren: Will you take a look at your Exhibit E on 120, they are placed in -- tell me if it is quite probable that in the circumstances of this situation, this man would've put his right hand inside between that 109-pound spring and the frame work of the cavity it which it was fitting and have taken his left hand out in order to hold it in there.

You can see that he is pressed right up against both the spring and against the flange that comes out there to the extent that it either pulls his -- his coach sleeve up or he's going down and would he be inclined to hold that 109-pound spring in that -- in that place and leave his left hand disengaged?

Mr. David J. Mountan, Jr.: He told that the foreman --

Chief Justice Earl Warren: Well, I just asked you now as a matter of common sense and you've been probably been around those shops too.

As a matter of common sense, would a man try to hold that thing in that way?

Mr. David J. Mountan, Jr.: I would say Mr. Chief Justice that it's a matter of common sense he would not.

Chief Justice Earl Warren: He would not.

Mr. David J. Mountan, Jr.: And that was -- that is why the accident happened --

Chief Justice Earl Warren: Yes.

Mr. David J. Mountan, Jr.: -- because he didn't used common sense.

Chief Justice Earl Warren: And probably the jury didn't believe that he had ever said that to the foreman, who was testifying for the company.

Mr. David J. Mountan, Jr.: Well, may I answer that Mr. Chief Justice.

Chief Justice Earl Warren: You may.

Mr. David J. Mountan, Jr.: The jury didn't know whether or not the platform moved.

Chief Justice Earl Warren: Very well.

Rebuttal of Ira Gammerman

Mr. Ira Gammerman: Well, I don't want to labor this point about the 12 juror.

I tried the case, and I spoke to the jury, and the juror who voted for the defendant told me that he wanted to award 10,000 instead of 15,000.

In answer to the point Mr. Mountan discussed with you Mr. Chief Justice, the evidence was that the petitioner was not an inexperienced workman.

He had done this work --

Chief Justice Earl Warren: I didn't quite understand --

Mr. Ira Gammerman: The evidence was that the petitioner was not an inexperienced workman.

He had done this type of work holding this spring in position on many, many occasions prior to the night of the accident.

With respect to the question of foreseeability, there was evidence in the record, specific testimony that a complaint had been made and the complaint had been made not about another pit or not about this pit but about the pits in general.

The question was asked of the mechanic whether or not he has made a complaint at a safety meeting.

He said he has and he complained that the platform moved.

He happened to be working at another pit and incidentally the record indicates that the pits were all alike.

He happened to be working in another pit at the time he made the complaint and it was in that pit that the safety device was installed.

Perhaps, if he had been working in this pit, the safe -- when the complaint was made, the safety device hadn't -- wouldn't have been installed in this pit.

The pits were one right next to the other on three adjacent tracks.

The question of whether or not the platform could move really depends on the distance between the flanges and this pedestal.

That is how tightly does the flange gripped the pedestal.

The photographs that Mr. Mountan discussed show the outside of the flange against the pedestal.

There is nothing in the photograph which indicates whether or not there was a quarter of an inch between the flanges and the pedestals or two inches between the flanges and the pedestal.

The respondent's foreman or the assistant foreman who testified said that it gripped it so that there was only a quarter of an inch.

The petitioner and the mechanics said that it didn't grip it that tightly at all.

That there was about two inches and that the whole thing was not secured until it was raised up to the point where the wheels were attached to the car.

And then it was secured, and at that point there couldn't be any movement.

But it's not disputed that at this point, during this stage in the operation the wheels were not secured to the car and that the only thing that was limiting movement was these pedestals around the flange.

Justice Byron R. White: (Inaudible)

Mr. Ira Gammerman: Well, this is again arguing to the jury but I argue to the jury that you had an imbalance in pressure.

There was evidence that the fact that the wheels when they raised -- would raised at an unequal rate so that the wheels on one side were raising or could raise at a speed higher than the wheels on the other side.

That is -- that was the significance of that tipping in the crossbar.

When the wheels were raised -- if the wheel on one side make some resistance, there will be a considerable pressure to the wheel on the other side to move up suddenly.

And when the wheel on the other side moved up suddenly, the platform would shift a little bit to equalize that imbalance between the wheels, and that was what caused the -- that was -- nobody knows precisely what caused the platform to move.

That's what I argued to the jury and that's what the jury obviously accepted.

The facts were all there to support that argument.

A complaint had been made about this dangerous condition and something had been done but unfortunately not in this particular pit.

Chief Justice Earl Warren: We'll recess now.