GALLICK v. BALTIMORE & OHIO R. CO.

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Argument of Marshall I. Nurenberg

Chief Justice Earl Warren: Mr. Nurenberg.

Mr. Marshall I. Nurenberg: Mr. Chief Justice, may it please the Court.

First of all, I would like to say at the outset that Senior Counsel on this case for the petitioner, Mr. A.H. Dudnik very much wanted to address the Court but unfortunately is confined to a hospital in Cleveland having underwent major surgery but I'm going to do my best to substitute as associate counsel on the case.

Now, this case is before this Court on certiorari to the Court of Appeals of Cuyahoga County, Ohio.

It is an action brought under the Federal Employers' Liability Act, Section 51 through 60 as amended.

The case was tried to a jury in the state court of general jurisdiction namely the Court of Common Pleas of Cuyahoga County.

It was tried upon a special verdict statute of the legislature of the State of Ohio which actually had only been amended approximately a year before this case was tried.

Now, I would like if I may before getting in to what I concede to be the real issue in this case to briefly discuss what the jury did find under the special verdict statute and what the Court of Appeals agreed that the evidence did support so that I can then go into what I consider the prime question in this case and that is what we claimed to be the fundamental error of the Court of Appeals in holding that despite the fact that the jury in the case found a causal relationship between the negligence which the jury found and the injuries to the petitioner which the jury found that such finding of causal relationship said the Court of Appeals or reasons which I will get in to in just a moment is not supported by the evidence, but would require the jury to indulge in speculation and conjecture and therefore the Court of Common Pleas instead of submitting the case to the jury in the first place should have directed a verdict for the respondent.

And therefore the Court of Appeals upon a statute of the State of Ohio entered that judgment which it said the Court of Common Pleas should've entered for the respondent namely a final judgment for the respondent.

And the court of -- the Supreme Court of Ohio refused to review the case under appropriate statutes and constitutional provisions of the State of Ohio thereby making that judgment final and permitting us to perfect our petition for a writ to this Court.

Justice William J. Brennan: What was the appeal to the intermediate state court?

Was it from the denial of a motion to direct the verdict for -- from the judgment or was that --

Mr. Marshall I. Nurenberg: It was -- actually, there were 16 grounds of error asserted by the respondent to the Court of Appeals which included among others the refusal of the Court of Common Pleas to grant its motion for a directed verdict.

The refusal of the Court of Common Pleas to enter judgment for the respondent railroad on the verdict of the jury being a special verdict which the respondent claimed entitled him the judgment and upon the refusal of a Court of Common Pleas to grant a new trial to the respondent for what it claimed for certain errors and trial procedure.

The other assignments are very basically are encompass within those.

Justice William J. Brennan: Well, now the Court of Appeals turned it down which of those grounds?

Mr. Marshall I. Nurenberg: Only on -- and this is very important, only on the single ground that the Court of Common Pleas erred in not directing a verdict for respondent.

This -- and I want to emphasize, this is terribly important.

This is not one of those cases where the court below having decided the case on one ground which would be sufficient to what to -- adjudge the case, found it unnecessary to consider other points of error.

The Court of Appeals in both its opinion and in its general entry went out of its way to say that it considered each and every amount of error which was asserted by the respondent.

And the only one of those grounds of error said the Court of Appeals which we find prejudicial to the rights of respondent is the refusal of the court of -- what the refusal in the Court of Common Pleas to direct the verdict.

Justice William J. Brennan: Well, that's to say then that if you prevail there are no open questions to be decided --

Mr. Marshall I. Nurenberg: Precisely --

Justice William J. Brennan: -- to bring your --

Mr. Marshall I. Nurenberg: That is precisely our position Mr. Justice.

Justice Byron R. White: But if you -- you don't prevail at the --

Mr. Marshall I. Nurenberg: If we don't prevail, we (Inaudible).

It's in the plain language.

In other words, there's a final judgment against us and if this Court does not see our point of view and reverse the judgment and reinstate the judgment which the Court of Common Pleas entered for the petitioner then of course the petitioner is completely exhausted all possible remedies and there'll be a final judgment before the requirement.

Justice John M. Harlan: (Inaudible)

Mr. Marshall I. Nurenberg: No, there is not, Mr. Justice Harlan.

Now, if I may I want to talk about that special verdict for just a minute.

Now, up until the time that the special verdict statute of the State of Ohio was amended as I say was approximately a year before this case was decided, the special verdict statute in the State of Ohio provided that the jury was to find questions of fact and from those findings of questions of fact, the trial judge was to draw the necessary conclusions of law and then to enter the judgment which should be rendered.

That statute was amended before this case was tried and the case was tried under the amended statute and the statute as amended said that it would be the function of the jury to try the determinative issues in the case and so that all that would remain to be done by the trial judge would be to enter judgment.

And the amended statute removed therefore from the functions of the trial judge the duty of drawing the conclusions of law.

Now, there's no dispute in this case at all but that there is no issue of contributory negligence.

That case -- that question is not even in the case.

So that under Section 51, the only determinative issues which could possibly be present in this Federal Employers' Liability Act case would be; (a) Was the respondent negligent?

And (b) Did such negligence in whole or in part cause injury to the petitioner?

There are no other determinative issues which could possibly be tried to the jury.

But the trial court nevertheless submitted several ancillary questions to the jury dealing with factual problem.

But the jury did specifically find and one of the questions asked the jury is -- was and it was question 16 on the special verdict.

Was the respondent negligent in one of more of the particulars alleged in the petition to which the jury answered, “Yes”.

And then they asked question 17, in what respect was the respondent negligent?

And the jury said, “In causing on his property or permitting to exist on his property a pool -- and I may not be quoting it exactly, this is the open and close, -- “A pool of stagnant water into which were permitted to accumulate dead pigeons, dead rats and bugs and vermin of various sorts”.

And then the jury was asked in other questions in the special verdict, “Did acts or omissions of the respondent proximately contribute to cause injury to the petitioner?”

And the jury answered, “Yes.”

And they were asked whether there was a proximate causal of relationship in any -- or in the slightest degree and again the jury answered, “Yes.”

Now, the respondent has argued vigorously however that the jury was also asked the question whether the respondent could foresee that its property conditions which are the substance of this action, the maintaining of a pool of stagnant water with all these vermin adjacent to which the petitioner was required to work whether the respondent could foresee that these would cause injury to the petitioner.

Justice John M. Harlan: What's the question?

Mr. Marshall I. Nurenberg: And that is, I think question 21.

Now, let me -- what?

What (Inaudible)

Question 20 and this question is quite important.

I want to talk to you -- talk about that for a moment.

It's noted -- it's on the record on page 13 and it's known as Exhibit T, or question 20.

There was another question on foreseeability too and that is question 22 but the question 22 I think we can dispose of in a hurry because that was whether they could foresee the present physical condition of the petitioner and what happen is that he developed this ulceration which ultimately spreads throughout his body literally ate his legs away from gangrene so that after four years in a hospital, it was necessary to amputate both of his legs above the knee.

But I think the law is abundantly clear that a defendant in a law -- in a negligence action does not have to foresee the end result.

So that that question I don't think is particularly significant but I want to go back to question 20 for this reason.

Justice Arthur J. Goldberg: You also don't (Inaudible)

Mr. Marshall I. Nurenberg: Yes, Mr. Justice Goldberg, I will.

Let me get to question 13 right now.

Yes.

Did the jury find a safe place in which to work and they said they cannot answer this question.

I would say on that at the outset that a similar question was presented to this Court sometime ago in another case from our office actually called Harris versus Pennsylvania Railroad Company which we cited in our brief, its 361 U.S.15.

In that case which was a general verdict for the petitioner, the jury likewise could not answer that question.

But in another question, the jury did find specific negligence and this Court held in a per curiam opinion where there was no oral argument simply that the decision of the jury was in line with the well known Rogers case reversed a judgment for the respondent and reinstated the judgment for the petitioner.

In this case, although the jury did not answer that particular question, the jury did find specific negligence in one or more the respects claimed in -- claim in petition -- in the petition.

And since the only other specification besides the general count of unsafe place to work that was submitted to the jury, the only other one was specification of negligence number 6 in the petition which may be found in the record on page 2 or page 3 and that specification is retaining -- pertaining to respondent and that it knew that by permitting said pool of stagnant water to accumulate dead pigeons, rats, bugs and vermin, insects would be attracted to said area and that his employers would have to work under unhealthful and unsanitary conditions.

And we maintained that in substance when the jury answer question 17, that's what they had in mind.

Now getting back to question 20, the question was, if the answer is to any one, any one of the questions number 1, 5, 6, 7, and 8 is yes, was there any reason to foresee?

Now, this I think is very important because the way the trial judge submitted the question to the jury, he never asked the jury if you can conceive of a collective situation.

In other words, all of these things be present at one time, dead rats, dead pigeons, pool of stagnant water and insects and requiring the petitioner to work there would that create a condition where it could be reasonably foreseen that the petitioner would be subject to harm.So that the jury could very well have answered question 20 by simply saying when they said, no, just one of these conditions alone wouldn't be enough.

You have to have them all there together and in fact the jury did find them all there together in question number 17.

And I think this --

Justice Potter Stewart: Of course the question --

Mr. Marshall I. Nurenberg: What's that?

Justice Potter Stewart: -- question number 13 is -- doesn't present the issue of defendant's liability accurately, does it?

Mr. Marshall I. Nurenberg: Question number 17?

Justice Potter Stewart: 13, 13.

Mr. Marshall I. Nurenberg: Question number 13.

Justice Potter Stewart: There's not a --

Mr. Marshall I. Nurenberg: I don't think so, Mr. Justice Stewart.

Justice Potter Stewart: How?

Why -- how -- why don't -- you don't think so?

Mr. Marshall I. Nurenberg: It's -- well, let's put it this way.

I -- my only criticism of question 13 and remember under the statute by the way, the lawyers don't draw the questions the judge does.

Justice Potter Stewart: I understand that.

Mr. Marshall I. Nurenberg: I think it's a little bit vague and could very well have been confusing to the jury whereas question 16 and 17 were completely clear to the jury and I don't think -- in my humble judgment that there was any question but that the jury intended to find negligence, did find negligence and the Court of Appeals in his decision conceded that jury found negligence.

Justice Potter Stewart: But my point with respect to question 13 was this.

The trial judge framed the question did the defendant B & O provide the plaintiff, Mr. Gallick, a reasonably safe place to work under the facts and circumstances existing at the time.

Well, now the defendant be noted and have any such absolute duty to provide the plaintiff for the reasonably safe place to work, did it?Had the duty only to exercise --

Mr. Marshall I. Nurenberg: Reasonable care.

Justice Potter Stewart: -- ordinary care?

Mr. Marshall I. Nurenberg: Reasonable care or ordinary care.

Justice Potter Stewart: Right.

Mr. Marshall I. Nurenberg: Right Mr. Justice Stewart.

Right.

Now, I want to talk if I may again about question 20 for this reason.

Not too long ago, this Court decided a case called Ellerim -- now, it was the Ellerman Lines case and I got it cited on one of the briefs.

But anyway, the question there is very similar to what we have here and that's what I want to talk about for a minute.

In that case, it was an action by a shipowner against a stevedoring company seeking reimbursement under what it claimed was the breach of the stevedoring contract requiring the stevedoring company the use actually the utmost care in unloading the vessel.

And in that particular case, what had happened was that as the burlap bags which are around -- had certain bands around were being unloaded.

One of the bands snapped and fell and it seriously injured the petitioner who recovered on a general negligence action.

And then the ship company brought suit for indemnity against the stevedoring company by whom petitioner was employed.

And the jury in answer to special questions found negligence but it also found in answer to a special question that the stevedoring company had complied in all respects with its contract.

Now the Court of Appeals, the Circuit Court of Appeals, said that as a matter of law, these were inconsistent answers because in order for the accident to happen that way as a matter of law, the stevedoring company had to breach its contract.

Therefore, it disregarded the finding by the jury and substituted its own finding thereby reaching a different result from the jury did.

But this Court held that that overlooked the fact that if advanced around the burlap bag broke this would be consistent with the warranty of unseen worthiness which would make all of the answers consistent.

And it was the duty of the Court whenever possible to try to reconcile all of the answers and make them consistent.

So applying that same line of rational to this case I say that when the jury finds negligence, when the jury finds causal relationship and the question is put to the jury in question 20 merely says anyone and omits presenting to the jury the question of the collective situation that that answer can therefore be reconciled with the answers to questions 16 and 17.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Marshall I. Nurenberg: Yes sir, Mr. --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Marshall I. Nurenberg: I think there was although I'm not completely positive offhand.

I think there was.

In this case, of course, the finding by the jury generally of negligence on the general issue would be an equivalent to a general verdict of the other questions with deal again with -- be treated similar to interrogatories.

Now, the real question as I see it thought in this particular case and by the way before I leave that last point, the respondent in its last brief to this Court stated that the jury was never charged on foreseeability.

This is not in accordance with the record.

On page 5, 17, 18 and 19, the trial court very thoroughly charged the jury on the issue of foreseeability in relation to negligence.

In special charges of writing prepared by the respondent itself because under Ohio law a lawyer has a right to submit charges and writing to be given by the Court and if these charges are correct they must be given in the language prepared by the counsel and submitted to the jury in writing.

And the general charge to the Court is then taken to be in pari materia with the special charges and there are some total then constitute the total charge of the Court.

And the respondent itself prepared questions on foreseeability and those charges were given by the trial judge.

So the jury did have them and it is not correct as respondent states in its last brief that the jury was never instructed on the issue of foreseeability.

Now, what the Court of Appeals found and this is very interesting to me was not that there could not be a causal relationship between the conditions because the two doctors who treated the petitioner both testified in no uncertain terms that there was a causal relationship, a medical causal relationship between the disease which the petitioner ended up with and the stagnant pool of water with its filthy conditions which we have referred to.

The respondent's doctor took the position that there was no causal relationship so that this created a square question of fact we contend to the jury which was resolved in favor of the petitioner.

But what the Court of Appeals said was not that there could not be a causal relationship but merely that there were also other places where the contaminated insect could've come from and it evolved upon the petitioner to exclude the other places before the jury had a right to say that it came from this place although you have here -- and this is the picture that were shown to the jury, a pool of water with a track and the petitioner is standing about 10 feet away.

This is looking through the south and it -- and all the witnesses testified that for many years there were accumulated in this pool of water and he worked from 10 to 20 dead or dying rats, pigeons, and different kinds of bugs and vermin crawling and flying all around this area.

Yet, the Court of Appeals took the position and this was another view showing the same thing.T

he pool of water which leads to the south to a drainage ditch and the petitioner was standing about like so.

But despite the fact that the petitioner was right next to a contaminating source, the Court of Appeals felt that it evolved upon the petitioner the duty of looking elsewhere or to eliminate looking elsewhere for this bug or this insect.

And if I may draw an example against from a recent decision by this Court in a totally different type of situation not too long ago, last June, this Court was confronted with a problem in a case called Continental Ore Company versus Union Carbide Corporation where the Court of Appeals held -- the lower Court of Appeals held that a directed verdict on causal relationship should have been to the respondents because the petitioner failed to show that he had tried up all the other sources where he could've gotten this ore.

In other words, the petitioner didn't show that he had made seasonable demand for such ore and that he had shown that all other source -- if he hadn't shown that all other sources where he could get the ore besides those of the respondents were dried up, he failed to meet his burden on causal relationship.

And this Court held that no such burden evolved upon the petitioner or at least as I understand it that would be a question for the jury to draw the inferences and not the Court.

And that the Court of Appeals was wrong in saying that a directed verdict should have been for the respondents that these were questions of facts for the jury and yet and in deciding that case, this Court cited its precedent, the Tennant case which of course is one of the leading Federal Employers' Liability Act cases.

And by the same rational, certainly where there is substantial evidence, remember the petitioner testified that although he never saw this insect he felt what was a hard shelled insect, he reported to his claim agent that he was bitten by an insect under the bridge before he ever had a lawyer or he was laying sick in a hospital bed that it was described as being a hard shelled insect about two inches long and an inch in diameter that he had seen insects that fitted that description crawling on these dead hives, in this pool of stagnant water just the track with the way.

There was no testimony that any such situation was ever seen elsewhere except underneath the bridge and yet the Court of Appeals said that the petitioner failed to meet his burden on causal relationship because he didn't show that there was any efficient causal relationship between the conditions under the bridge and the petitioner's injury despite the fact that the FELA provides and this Court has interpreted it in the Rogers case as providing that you don't have to show any efficient causal relationship.

You merely have to show negligence in whole or in part and as a producing cause of a petitioner's injury.

So that where we are left now and why we have asked this Court to review the case is because at least litigants in the State of Ohio are being forced to litigate this class of case under an impossible burden.

Well, were -- or at least a burden which is totally inconsistent with what we concede to be the interpretation of that Act as this Court has put upon it time and time again.

I don't know how much time I have left but this is a -- how much?

Unknown Speaker: 7 minutes.

Mr. Marshall I. Nurenberg: 7 minutes.

I would like to reserve my last 7 minutes if I may.

Chief Justice Earl Warren: Would you mind stating just briefly again what the causal connection between the injury and the disease was as stated by your doctors?

Mr. Marshall I. Nurenberg: They stated -- and that was Doctor Hipolito and Doctor Anderson.

Well, let's take that (Inaudible) first.

He put it this way.

That in his opinion, an organism of some sort was introduced into petitioner's body through this insect bite which he felt as an expert on sanitation problems although not necessarily an expert on insects of necessity was related to the pool and filthy conditions there prevailing and that medical science was unable to properly control the spread of this disease once it was injected into petitioner's body which resulted in his debilitated condition.

Doctor Robin Anderson, who treated this man for two years at the Cleveland Clinic, in Cleveland, Ohio, testified -- to use his words and perhaps I can find them in a hurry, because I hate to misquote -- Doctor Anderson stated answer to a hypothetical question, “My opinion is there is a direct relationship between the state and the man's health, the insect bite and the stagnant area.”

And elsewhere in cross examination, Doctor Anderson stated that the condition of the man in his medical opinion was related to the conditions that were maintained in this stagnant pool by reason of the filthy condition there and prevailing.

And I might add by the way, the last thing I want to say -- well, that comes up on this hypothetical question which respondents attack in their brief, I would like to point out to the Court that the respondent used the identical hypothetical question to their own doctor, Doctor Davis.

The very one which they claimed the trial court should not have permitted us to ask, their doctor answered it differently than our doctor did or I should say the treating doctors did.

And that of course created that square issue of fact.

Chief Justice Earl Warren: Mr. Hadden.

Argument of Alexander H. Hadden

Mr. Alexander H. Hadden: May it please the Court, Mr. Chief Justice.

Mr. Nurenberg has dwelled at some length on two issues presented in this case.

He has not dwelled on the third.

He maintains at the outset and I should like to address the preliminary words of this matter what issues are present for the decision of this Court at this time.

Mr. Nurenberg's reference in his brief and quote to a large extent also in his argument today has contended to the Court that the sole question presented for its decision in this is the question of whether or not the Ohio Court of Appeals was correct in determining that there was insufficient evidence of causation to take this case to the jury.

Respondent submits to the contrary that there are three questions presented to this Court.

First, the question of whether or not there was sufficient record evidence of railroad negligence.

Mr. Nurenberg has not devoted any attention at all to that question up until the present moment.

Second, whether there was sufficient evidence of causation.

And third, whether or not the special verdict returned by the jury in this case is sufficient to support a judgment for the petitioner or whether on the contrary it does not require entry of final judgment for the respondent.

I would say with regard to those three issues that they are all squarely presented by this case for decision at this time and they cannot be that.

This Court has repeatedly held that the Federal Employers' Liability Act cases present questions of federal law which must be determined uniformly throughout the states without regard to the degrees of state procedure.

I think Mr. Nurenberg's own argument in the length of time he has spent today on a special verdict resolves the question of whether or not this Court must not look at the special verdict and determine for itself what the meaning of the jury was as expressed in the special verdict.

Now, there are cases of one of which Mr. Nurenberg has cited, the Ellerman case, Atlantic & Gulf Stevedores against Ellerman and another one Arnold against Panhandle Railroad Company which in both of which this Court has held.

It has not held specifically that the interpretation of special findings is for this Court but in effect sub silentio as so held because it is -- has examined state court jury verdicts, state court special findings and itself for which the conclusion of the interpretation to be placed upon it.

Justice John M. Harlan: Would you state the last question that you think is here?

Mr. Alexander H. Hadden: Yes sir.

Justice John M. Harlan: Is that the foreseeability?

Mr. Alexander H. Hadden: No, that's implicit in it Your Honor but the question as I put it the third one was the matter of whether or not the special verdict does not require entry of final judgment for the respondent railroad.

And of course, implicit in that question is the jury's finding of the total lack of foreseeability and therefore necessarily the question of foreseeability is involved in that question as indeed it is both in the question approximate cause under the question of negligence.

In as much as all of these three questions are present before the Court, I would like to turn my attention to what I regard as the one which the Court must first get over in order to reach to -- to reverse the result now -- which now obtains in the case.

As Mr. Nurenberg points out the jury in this case was asked to return and did return a special verdict.

No general verdict was returned.

The jury was asked to express its findings in terms of the 23 questions framed by the trial judge.

Consistent with federal court procedure, Ohio procedure is entirely consistent I might add in this connection with federal court procedure.

Federal court procedure and Ohio procedure both provide for special verdicts and in both cases no (Inaudible) -- no general verdict is returned by the jury.

Under the federal rules, Federal Rule 49 (a), the Court submits to the jury questions on issues of fact, disputed issues of fact and gives only such as instructions as are required by the jury to render an intelligent decision on the question submitted.

That was done here.

It was done for the purpose of withdrawing from the jurors the emotionalism that was intended -- was attended upon the trial of this highly charged emotional case with the man very badly crippled.

Mr. Nurenberg seeks to avoid the legal effect of the finding of lack of foreseeability on a ground which respondent has great difficulty in grasping.

He has not cited any cases which dispense with the legal requirement of foreseeability of risk of harm as unnecessary and indispensable for predicate to liability for negligence.

Respondent submits that there are no such cases.

This Court repeatedly and time after time in Federal Employers' Liability Act cases has held that it must appear with reason, with reason from the proofs that an injury such as sustained by a plaintiff could have been anticipated from the negligence or the conditions existing on the railroads property.

That is at the heart of this case.

Justice Potter Stewart: You're relying specifically on the jury's answers to questions 20 and 22?

Mr. Alexander H. Hadden: 20, most -- for the most part, 22 also and question 13 also Your Honor.

It's our feeling that this special verdict must be regarded as a whole.

In the Ellerman case, in the Arnold case, this Court has twice held that the view of special findings must be adopted which serves to harmonize those findings one with the other.

The Court has specifically stated that Appellate Courts must not grow for conceptions of the facts which will make the jury findings inconsistent.

Here, Mr. Nurenberg asked the Court to adopt the finding which not necessarily makes the findings to adopt the view which makes the findings inconsistent but he asks the Court for reasons which I fail to understand to disregard entirely these three findings which are favorable to the respondent.

It is not -- he does not hypothesize any view of the facts or any view of the case under which these three findings can be harmonized with the remainder of the verdict.

Respondent submits that there is a means under which that the -- all findings maybe harmonized one with the other.

That view is one which can be taken only after a brief look at the instructions given by the Court to the jury to assist in reaching its factual determinations.

Contrary -- contrary to what Mr. Nurenberg has said there is no find -- there is no instruction in this record whether in writing as requested by the parties or orally given by the judge which told the jury that it wasn't legally necessary for them in order to reach a finding of negligence in order to say that the respondent was negligent.

It was legally indispensible for the jury also to find that a risk of harm was foreseeable and should have been anticipated by the respondent.

No such instruction was given.

It is the fact that the jury was extensively charged on the general subject of foreseeability.

That question was at the heart of this case from the very time the pleadings were filed.

Respondent denied the foreseeability in its answer and that was controverted in the reply.

The nature of this man's disease, the nature of the way in which it is said to have been contracted by him is so incredible, it's so unique, so oddly unprecedented that foreseeability by the very nature of the case lay at the heart of it from the outset.

Justice Byron R. White: (Inaudible) are you simply saying that (Inaudible)

Mr. Alexander H. Hadden: What is sustainable Your Honor?

Justice Byron R. White: You're saying that this was (Inaudible)

Mr. Alexander H. Hadden: Yes sir.

I'm saying -- I'm saying, first, that there was not sufficient evidence of negligence.

Second, that even if there was, the jury resolved the question of foreseeability and therefore negligence against the petitioner.

Justice Byron R. White: What was the (Inaudible)

Mr. Alexander H. Hadden: The Court --

Justice Byron R. White: (Inaudible)

Mr. Alexander H. Hadden: -- did not expressly discuss -- the Court discussed the question.

It reached no specific conclusion.

It said merely that -- I believe the language of the court below was that this finding could furnish the gravamen of a -- of the cause of action under the Federal Employers' Liability Act whether that amounts to a holding on its part that it so held, I rather doubt.

I think that a --

Justice Byron R. White: Could at least toward the finding that there was enough evidence of negligence?

Mr. Alexander H. Hadden: It assumes that arguendo, I would say Your Honor.

To return to the construction of the special verdict, the important thing here is that the jury did not know that to find negligence it must also find foreseeability.

The only instruction given to it, defining negligence was the definition stating simply that negligence is the failure to exercise, due care or the care which would be exercised by persons of ordinary prudence.

Justice Arthur J. Goldberg: Is that in the record or (Inaudible)

Mr. Alexander H. Hadden: Yes sir.

We requested several and several were given but they were instructions which dealt with the question of foreseeability pure and simple.

That is for example that hindsight could not enter into it but only -- the only consequences which could be reasonably foreseen by persons in the position of respondent and so on.

That was the sort of thing that was involved in the definition of foreseeability but there was no linking instruction and --

Justice Arthur J. Goldberg: You're (Inaudible)

Mr. Alexander H. Hadden: We did not Your Honor.

We felt it was unnecessary because by the very nature of a special verdict none was required.

The jury is -- was instructed to find and give answers to specific questions and general propositions of law were not proper under those circumstances.

Justice Arthur J. Goldberg: Well, even to (Inaudible)

Mr. Alexander H. Hadden: I make no complain about the instructions Your Honor.

I merely point out that the jury didn't know what the relationship was.

Therefore, the -- in following this Court's rules which require that every reasonable intendment be given to try and harmonize and give effect to all of the features, all of the passage of a special verdict in applying that rule it is necessary to try and see what the jury really meant and to give effect to each and every one of the findings.

I submit therefore that in view of the general instruction given to the jury on the term “negligence” namely failure to exercise due care, that and nothing more and on the two sentences of an oral instruction.

It is most probable it seems to us that what the jury was in effect saying when it said that respondent was negligent because it permitted a stagnant pool and then animals to exist on its property.

Although, no risk was -- of harmless foreseeable there from was merely that this particular location which indeed is not a garden spot and we make no secret to that.

It could've been cleaned up.

It must have (Inaudible) -- presented perhaps a clean air, pleasanter, more attractive place for respondent to work.

I suggest to the Court that this is the only view of this special verdict under which all of its particular parts and all of the answers to the various questions can be made a uniform whole.

Petitioner does not suggest and has not to date and cannot now suggest any other view of this verdict which favors anybody which gives effect to all parts of the verdict.

Chief Justice Earl Warren: Did you appeal on grounds of misdirection to the jury?

Mr. Alexander H. Hadden: Yes sir.

That is to say a case went to the jury?

Was given --

Chief Justice Earl Warren: Yes.

Mr. Alexander H. Hadden: -- to the jury to decide?

Chief Justice Earl Warren: No, on this question of foreseeability?

Mr. Alexander H. Hadden: That they were erroneously instructed on the question of foreseeability?

Chief Justice Earl Warren: Yes.

Are not sufficiently instructed?

Mr. Alexander H. Hadden: No sir.

No sir.

I don't think they were insufficiently instructed.

I merely say that their findings had to be read in the context of the instructions which were given.

And in attempting to reach a conclusion, a rational conclusion as to what the jury meant, you have to look up at the instructions and the answers given to the questions one as a uniform whole.

Chief Justice Earl Warren: Then there is no question here at all about the adequacy of the instructions?

Mr. Alexander H. Hadden: Well, there is no question urged upon this Court at this time.

Questions have been made in the courts below but --

Chief Justice Earl Warren: Yes, it isn't here?

Mr. Alexander H. Hadden: -- not presented here.

That's correct.

Chief Justice Earl Warren: Yes.

Mr. Alexander H. Hadden: Determining my considerations of a special verdict, I would like to say that since the most specific finding was what -- findings were findings which were favorable to respondent and since the general spirit both of the federal rules and of the Ohio procedural statutes affecting interpretation of verdicts since both of those in effect require that the special findings, the more specific findings prevail over the general, it is our position that this special verdict and the findings of lack of foreseeability requires as a matter of law that the judgment of the court below be affirmed.

However, let me add that if the Court should differ with us on that contention and then on that event this respondent Railroad without any question whatsoever be entitled to a new trial at which findings would be returned which would present a uniform whole in which no inconsistencies were present.

Thus although we had contended, we are entitled to final judgment on a special verdict that we also feel at a new trial at the very least is owed us.

Chief Justice Earl Warren: I understood you just say that the Appellate Court assumed arguendo that there was sufficient evidence, can you point out to me the language where it said that?

Mr. Alexander H. Hadden: Yes, it's on page 626 of the record.

The paragraph reads as follows.

We can with reason say that to maintain for a period of years stagnant, vermin and infested pool of water on and over which insects gather on property where its employees are required to work could furnish the gravamen of it -- an offense under the Federal Employers' Liability Act.

Chief Justice Earl Warren: Does that say that it assumes arguendo (Voice Overlap) --

Mr. Alexander H. Hadden: Well, that's my interpretation of it Your Honor.

I didn't say that in so many words, no.

But I -- to me that means it could, we don't necessarily agree that it did but we pass the question, we're going to the question of causation.

Perhaps I'm wrong and if you read it differently I --

Chief Justice Earl Warren: No, I'm not reading it at all.

I'm just asking -- I thought you said it was the Court decides arguendo and I would just --

Mr. Alexander H. Hadden: That's the --

Chief Justice Earl Warren: -- want to see the language.

Mr. Alexander H. Hadden: That's the interpretation I placed --

Chief Justice Earl Warren: Yes.

Mr. Alexander H. Hadden: -- from the language.

Chief Justice Earl Warren: Yes.

Mr. Alexander H. Hadden: Yes sir.

Chief Justice Earl Warren: Yes sir.

Mr. Alexander H. Hadden: Alright, I pass now to the question of the record evidence of negligence which in the first instance where this determined the question whether or not the case should go to the jury.

Petitioner had vacillated somewhat in his theory of the case and we've had some difficulty understanding just what his theory of the case is.

As originally pleaded and as tried, this case was presented on the theory that the alleged unsanitary conditions on respondent's property attracted an insect and that the insect bit the petitioner as a direct and proximate consequence of those conditions and that he has this disease as a result.

To me, it's absolutely indispensably essential to that line of proof that the assumption that a biting insect was attracted.

Now however in this Court in his reply brief and I think for the first time petitioner concedes and he says the presence of an unidentified insects does not imply danger and that the real gist of his complaint and his cause of action is that there were unsanitary conditions on the property just that and nothing more.

Respondent felt at the time of trial and continuous to feel that there must be three conditions which coalesce three essentials to cause of action such as this negligent of transmission of disease as it were.

First, that there was a probable source of a medically known disease or infection on the premises and that respondent was unnoticed of that through the notoriety of the disease or infection whatever it may be.

Second, that there was a known means of transmission upon which respondent was unnoticed of the existence of it, whether an insect or anything else.

If an insect is essential, a biting insect, that's one thing.

If not, there must be shown something else from which it could be reasonably anticipated by respondent that these property conditions gave rise to a risk of harm of some sort to its employees.

Finally, there must be some evidence or some rational basis to infer for the jury that both the disease or the infection or the lack of sanitation or whatever phrase used to describe it and the means of transmission could by some reasonable means available to the Railroad Company have been either eliminated or reduced or in some manners materially controls the risk of harm to employee was lessened.

Obviously, those three things are essential.

They doesn't know -- no railroad company can be charged with the duty of keeping its premises immaculately claimed.

We know and there's evidence, abundant evidence in this case that there are microorganisms, potentially infectious microorganisms which are present everywhere.

They are present in this courtroom.

They're present on everybody's body.

They're present in the pool but they're all also ubiquitous and nothing anybody can do or could ever try to do to -- could get rid of all of them.

The same thing of course applies to insects.

Insects are everywhere, we know all about.

The numbers of them, there are millions and millions of them and hundreds of thousands of species of them.

Many of them are not harmful.

Many of them are beneficial to mankind.

Nothing that anybody can do, can eradicate insect life and in the second place nobody would want to do that, just to hog anywhere.

Thus, the only insect life and the only microorganisms, bacteria and (Inaudible) -- and whatnot which reasonable care imposes a duty to remove are those which are harmful and those which reasonable care can eradicate, reasonable meth -- means.

Now, what is the evidence of record pertinent to these questions?

First is as to insect life.

The only insects identified by name in this record are ants, flies, mosquitoes, sand fleas and Canadian soldiers, the latter two are seasonal little harmless bugs that flying off Lake Erie of the Cleveland in the spring.

Those are the only names of insects which are -- appear in this record.

None of them except mosquitoes can be thought of as -- that are -- none of them except mosquitoes are harmful to man.

None of them habitually attack human beings.

It's doubtful that mosquitoes can be said to cause legal harm.

They do bite as we all know but in Northern Ohio, as I think this record demonstrates, there is no history of malaria or yellow fever or any of the well known insect mosquito-borne diseases.

Petitioner in this case did say that his testimony on this point being somewhat contradictory that he had seen on previous occasions insects two inches long and described it as the width of his three fingers and a half of inch in diameter about this big around as his little finger that being the size which he felt inside his pant leg when he flapped his leg.

He didn't see insects of that size on the dead hives as he called them which were in the pool.

Now, as to those, there is no testimony whatever as to the fact that any insects of that size are known to be of a harmful nature or propensity to attack human beings in Northern Ohio.

There is no showing whatsoever in this record that any insects or any harmful nature whatsoever would be attracted by conditions under this bridge.

The record evidence is entirely to the contrary.

The record evidence is coming from the only expert, entomologist, who testified in this case and he testified on our behalf.

He said that the only insects attracted by the conditions under this bridge would be mosquitoes in the first instance.

And no mosquito is involved in this case considerably.

Mosquitoes and certain forms of carry-on or varying beetles which crawl their way into the dead animal life and consume it, those insects he said would not bite and would not sting human beings.

There is no evidence that these premises would attract any insect which would attack human beings.

It's true that petitioner's doctors hypothesized in their answer to the hypothetical question that some insects would be attracted by the conditions on the premises.

All of them, both of the doctors however repeatedly and wholeheartedly conceded that they had no expert information or knowledge about insect life and their conclusions with respect to what insects would be attracted are therefore without anyway whatever.

Now, if petitioner's theory at the present time be accepted that lack of sanitation without insects be accepted as a sufficient basis for the case to go to the jury, let us just look at that intention for a moment.

Petitioner says that merely the existence of these property conditions without any expert testimony whatsoever are sufficient to -- for a lay jury to conclude that risk of health or risk to the health of employees would be -- would result.

But that is not this case.

There is record evidence.

There is record expert evidence from both petitioner's doctors and ours as to what health risks were presented by the conditions under this bridge.

I submit to this Court that the only testimony which in anyway can be said to support a conclusion by the jury of lack of sanitation being a risk to employees consist of one answer given by one of petitioner's doctors to a question asked on cross examination.

He was asked, “Doctor, how do you reach the conclusion?

How do you justify your conclusion that there is a connection between the property conditions, the presence of the insect, the bite of the insect and the petitioner's disease?”

That was one question which was answered, “Yes, I have that opinion.”

And he said, “Well, we know that there are certain recognized diseases which conditions of this sort enhance the growth of.”

Alright, doctor what are those conditions?

The only conditions, the only diseases which he was able to respond are plague, bubonic plague caused by rats in the middle ages and malaria.

There is no -- not -- one other word of testimony in this record to confirm what risk of health -- risk to health was presented by these property conditions.

In further cross examination of both doctors it was developed that their reasoning process goes something like this.

It's a syllogism major or minor premise and a supposed conclusion.

They say we recognize that certain diseases, certain recognized diseases are enhanced, their possibilities of developing are enhanced by conditions such as for present respondent's premises.

That's the major premise notwithstanding the fact that neither of those recognized diseases has ever been known nor has any incident of this sort ever originated near this property before nor since.

The minor premise is -- petitioner suffers from a disease of unknown origin, having no understood medical cause, a disease entirely unprecedented for which there is not one precedent in any medical literature whatsoever.

He suffers from this disease which he -- which had its onset at the time when he was present near this stagnant pool.

Therefore, the doctor says, “There is a direct causal connection between the filth and the pool and this unknown disease.”

There are -- in a number of reasons why that reasoning process is unsound and must be disregarded and overturned.

In the first place, as I have already observed the testimony is heavy in this record that microorganisms, that the only microorganisms which would be present in this particular pool are the same identical microorganisms which are present on everybody's body.

The testimony is that in inside our bodies and on the outside the same types of bacteria are present which would be present in the pool.

The doctors have ruled out all of these microorganisms as a possible cause of petitioner's illness.

They simply do not know what causes his illness.

Chief Justice Earl Warren: Mr. Hadden, could you tell us --

Mr. Alexander H. Hadden: Yes sir.

Chief Justice Earl Warren: -- what the record shows so far as the particular wound that he got from this bite?

Mr. Alexander H. Hadden: Yes sir.

He got a bite about two inches above his knee and the back of his knee, inside his pant leg.

I don't have the chronology of it exactly in mind but in general is this that that night he noted a swelling there which he couldn't see I don't believe because it was of its location that it continued to grow in size.

It formed a pus head, sometime of -- a matter of days or perhaps a week later, that got broke.

He went to a doctor, Doctor Heller who testified that when he went there, when he saw him the first time he did see him, the wound had the appearance of a staphylococci lesion that is simply a boil, like any other boil.

There was no testimony whatever that from any doctor that connected the type of injury, the type of wounds sustained by this man from the bite with the bite itself.

There was nothing characteristic of it to indicate that it came from a bite.

It looked like a staphylococcus.

It looked like something that anybody could get if -- through a hair follicle or in shaving or whatever, a boil which would form and pus would come out of it.

That was -- that's the general nature of the testimony relating to the origin of the bite, Your Honor.

There is, I might add, that it is affirmatively demonstrated that staphylococcus which, as I say, was Doctor Heller's initial impression what was the cause of this -- of his lesion.

The testimony is that through subsequent test that has been ruled out as the cause of his disease.

All other known organism, microorganisms had also been ruled out as a cause of his disease.

The doctor simply don't know what this man has.

Chief Justice Earl Warren: What was the progression of this wound, did it heal up or --

Mr. Alexander H. Hadden: I don't believe (Voice Overlap) --

Chief Justice Earl Warren: -- healed up entirely or (Voice Overlap) --

Mr. Alexander H. Hadden: I don't believe it ever did heal up.

Chief Justice Earl Warren: Or did it progressively (Voice Overlap) --

Mr. Alexander H. Hadden: It grew larger and then within about two months he started to get other wounds of similar nature on other parts of his body where there was no history of any insect bite.

Those came and went into -- his progress has been one of partial and momentary remission and followed by cases of an unsaid of the disease which get primarily got deeper and deeper and it got to the tendons of his legs upon the -- there was no hope of saving the legs or any usefulness of them and they were cut off.

The source formed at various parts of his bodies, his body with no history of how they start or why they start.

Justice Tom C. Clark: And in the (Inaudible)

Mr. Alexander H. Hadden: He had -- his history was so far as he knew without any exception prior to the time of this bite.

However, in that -- in the record there was -- in the record there is testimony, Mr. Justice Clark, that to the effect that the probable real diagnosis of this man's illness not well understood and highly theoretical at the present moment so far as the medical profession is concerned that the real cause of it is the fact that he is a man who has a hyper-allergy as they call it.

This is something of peculiar sensitivity to infection that no doctor can understand why it's there, why it develops at one particular time.

On the matter of causation, I would like to say one or two words though my time is limited.

Petitioner's testimony or theory is that not only that it was foreseeable that this particular property condition gave rise to a risk of -- I see my time is up.

Chief Justice Earl Warren: You may state it in -- state (Inaudible) in the record --

Mr. Alexander H. Hadden: Thank you sir.

Chief Justice Earl Warren: -- in the case very briefly please.

Mr. Alexander H. Hadden: Petitioners contends not only that it was foreseeable that a risk of harm to health of employees would be created by these unsanitary conditions not only that but he contends that he actually did come from this particular pool.

The record is plain.

We believe that there is no rational basis for any such conclusion whatsoever.

There is no rational basis.

This Court has said so many times that it has to be concluded with reason by the jury that the negligence was the cause of the illness.

That is not present on this record.

Thank you very much Your Honor.

Chief Justice Earl Warren: Mr. Nurenberg.

Rebuttal of Marshall I. Nurenberg

Mr. Marshall I. Nurenberg: May it please the Court.

In a few brief moments that I have I would like to just point out a few things.

Number one, on page 548 of the record at the conclusion of the charge of the Court, so that there is no misunderstanding on this.

The Court asked counsel if there was anything further that he was charged on and Mr. Leasure speaking for the respondent stated on behalf of the defendant we do not have any request for an additional charge.

However, I want to save my exceptions.

And the law in Ohio was clear and I think that's the law generally that if there should be an error commissioned and I don't think there was one you can't take advantage of it if you don't call it to the Court's attention.

And we do repeat contrary to this --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Marshall I. Nurenberg: That means that if there is an error of commission in the charge that if the judge said something wrong to the jury when he did say which could be precedentially erroneous then he would be entitled -- the party objecting would be entitled to a new trial.

But if there was only an error of commission then you can't find that error in the upper court.

So at best, respondent's argument could only deal with an error commission and I repeat that if the Court will read the entire charge it's given before argument on page 518, it will find that the jury was instructed and no uncertain terms about this question foreseeability in its overall relation to the case.

And I do claim that if foreseeability is in the case that on the basis that I gave that anyone is the significant answer and it can't be reconciled with the jury's answers to the specific finding of negligence.

Now, I would like to read if I may, the answer of Doctor Robin Anderson to a question imposed to him on cross examination which gives a fairly good chronology and it's found on pages 260 and 261 of the record.

And he says, the man had met -- I'm skipping the first paragraph about his arm, they treated him and he had a history.

This man had massive ulcerative disease which from a medical standpoint and as far as medical evidence is concerned can be traced back directly to something related to a bite of some insect which was observed and found to be a small red mark.

Over a specific period of time, the small red mark increased in size.

At the end of six or seven days, this red mark had increase to something much longer with what we are told had a head on it.

And we must assume that this lesion at this time is the same lesion which started at the time of the original injury and I might say parenthetically that that was well verified medically.

From this point on, their study progressed all of which is verified medically, from this point we have our own history in terms of the record.

We must carry our basic reasoning back one step further and that is at the presence of filth, of rats, of dead vermin, of stagnant water predisposes to disease, predisposes to the growth of insects and the like.

This man was bitten in close proximity to such an area of stagnant filth and it is only logical that we must assume that the probability is there that whatever it was and the insect and the bug is related to the presence of that area and this from a doctor who treated this man for two years at the Cleveland Clinic and as -- and is the Head of the Department of Plastic Surgery in that particular institution --

Justice Potter Stewart: That was the answer to a hypothetical question, isn't it?

Mr. Marshall I. Nurenberg: No, that was an answer to a question on cross examination by Mr. Leasure as to why do you feel Doctor Anderson that there is a relationship between the stagnant pool of water and the ultimate result.

Justice Potter Stewart: Well?

Mr. Marshall I. Nurenberg: And it relates to the hypothetical question (Voice Overlap) --

Justice Potter Stewart: It relates to the hypothetical question --

Mr. Marshall I. Nurenberg: -- Mr. Justice Stewart.

Justice Potter Stewart: -- as on direct?

Mr. Marshall I. Nurenberg: It relates to that question --

Justice Potter Stewart: Right.

Mr. Marshall I. Nurenberg: -- as to why he gave the answer that he did.

Justice Potter Stewart: Right.

Mr. Marshall I. Nurenberg: And as to this question of hyper-allergy, no doctor testified this man had a hyper-allergy.

Respondent's doctor, Doctor Davis said that -- and he was only called as a medical expert to testify hypothetically.

Respondent's doctor, Doctor Davis testified that this is the only thing I can say to explain it but the respondent -- but petitioner's doctor explained it differently.

They related the fact to the condition complained of.

If I got just another moment (Voice Overlap) --

Chief Justice Earl Warren: You may take another moment, yes.

Mr. Marshall I. Nurenberg: The only other thing I want to say is that on this question of the Arnold case and these other cases, they all dealt with the deprivation of federal rights, a deprivation of the right to trial by a jury in finding negligence and causation.

In the Arnold case, the jury found an unsafe place to work, but specifically rejected each and every claim of negligence and the Supreme Court of Texas entered a final judgment for the respondent on the claim that under Texas procedure this was mandatory.

And this Court held that when a jury found that the place of work was unsafe, this was sufficient to warn the petitioner's judgment in the verdict.

But here, there is no claim of a deprivation of federal rights.

Respondents had its trial by a jury and any questions of a state procedure were resolved against the respondent.

And so all that remains here is for this Court to determine whether the court below was wrong when it came to the conclusion that defined causal relationship, the jury would have to have indulged in speculation and conjecture and not in evidence.

Thank you very much.