Deen v. Gulf, Colorado & Santa Fe Railway Co.

PETITIONER:Earl R. Deen
RESPONDENT:Gulf, Colorado & Santa Fe Railway Company
LOCATION:Quality Photo Shop

DOCKET NO.: 199
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: State appellate court

CITATION: 353 US 925 (1957)
ARGUED: Apr 01, 1957
DECIDED: Apr 08, 1957

Facts of the case

Not Available.

Question

Not Available.

Earl Warren:

Number 199, Earl R. Deen versus Gulf, Colorado & Santa Fe Railway Company.

Robert Lee Guthrie:

May it please the Court.

Earl Warren:

Mr. Guthrie.

Robert Lee Guthrie:

This is a case that arises under the Federal Employers’ Liability Act.

It involves a workman that was injured in the course of his employment while working for the Santa Fe Railway Company at Brownwood, Texas.

The injury was sustained on July the 12th, 1949.

On that day, a locomotive was in the shops of the company for repair.

The clerk of the general foreman told Deen, who was the coppersmith for the railway company, that we must have this locomotive out of the shops today.

Now, to repair the locomotive, it was necessary to use babbitt which is an alloy of antimony, copper, and tin.

The babbitt that was available was in a steel pot that leaked so badly that it put out the fire which burned underneath the pot in the furnace.

Now, on that very day, the railway company was planning to replace the pot with a new one.

And the foreman told Deen that if he had that old pot off of the furnace and have the furnace ready to be replaced with a new pot, that he could use the men that brought the new pot to lift it upon the furnace and also to place the babbitt in the new pot for melting.

Earl Warren:

Place the babbitt where?

Robert Lee Guthrie:

In the new pot for melting, in the new — new steel pot.

Earl Warren:

Yes.

Robert Lee Guthrie:

Now, Your Honors, the steel pot weighed about 250 pounds.

And the babbitt that was in the pot weighed some 550 or 600 pounds as I remembered.

The steel pot and the babbitt together weighed almost a half a ton.

Now, right beside the steel pot was a hoist that it then furnished by the railway company for the purpose of lifting heavy object.

Now, this steel pot fitted so snugly in the furnace that it was necessary for Deen to take a crow bar and pries it off to the furnace, a distance about half an — inch-and-a-half, so that it could be gripped by the arms of the hoist and lift it from the furnace onto the floor.

He revolved the hoist around, fitted the arms of it under the — under the rim of the steel pot which was a inch-and-a-half to two inches wide, then he tried to take the pot from the furnace to the floor and in the course of the transfer, the steel pot fell to the floor.

And Your Honors, he then tried to overturn the steel pot with the babbitt in it by himself, but he was unable to do so.

A fellow workman and a blacksmith in the shop saw the difficulty that he was in and they voluntarily came to his assistant, then both tried to overturn the steel pot to empty out the babbitt but they were unable to do so.

And then both of them went around to the front of the pot, one braced himself against the furnace, that was Deen, Snow braced himself against the steel bent that was there and they pulled the steel pot towards it.

Just as it reached an upright position, the babbitt slab out of the pot, caught Deen’s right leg, mangled him and crippled him for life.

And the case was tried before a jury in the state court at Brownwood, Texas.

The case was submitted to the jury in accordance with Texas process on special issues.

Now, the jury in response to those special issues made the following findings, that the railway company did not furnish Deen proper tools to do his job, that this failure was negligent and that it was approximate cause of Deen’s injury.

The jury also found that the railway company did not fail to give Deen proper supervision.

They found that the railway company did not fail to furnish him sufficient help to do the work.

Robert Lee Guthrie:

That Deen’s failure to use the available help was negligence and this was the proximate cause of his injuries.

But the jury also found that Deen was not negligent in the manner and method that he used to do his work, that the sole cosmic cause of his injuries was not Deen’s negligence.

And that the railway could anticipate, could recently anticipate that Deen would do the job in the way and manner in which he did.

And that $39,000 would compensate him for his injuries, but because of his own negligence that that recovery should be reduced 45% or $17,550 leaving him a recovery of $21,450.

Now, Your Honor, the trial court reconciled all of the findings of the jury and rendered judgement in favor of Deen for $21,450.

And that was the only judgement that could be rendered, giving effect to all of the findings of the jury.

Now, the railway company appealed the case to the Court of Civil Appeals of Texas, and they set aside the judgement of the trial court and said that Deen should recover nothing.

They didn’t even send the case back for a second trial.

And Your Honors, in order for the Court of Civil Appeals to do that they could only give effect to certain findings of the jury and ignore other findings of the jury.

We say that the Court of Civil Appeals deliberately circumvented the findings of the jury in this case.

We say that the Court of Civil Appeals of Texas resorted to certain very obvious devices in order to do this.

In the first place, they construed our pleadings strictly against us.

And, Your Honors, pleadings in Texas are very liberally construed.

And this is particularly true after verdict of the jury has been rendered.

But in this case, the Court of Civil Appeals strictly construed our pleadings against us.

And we say — we said in our pleadings that the injuries which Deen sustained, approximately resulting from the railroad — approximately resulted jointly and severally from the failure of the railroad to furnish proper tools and from the failure of the railway to furnish sufficient help to do this job.

That is true that in another part of our pleadings we said that the railway company either failed to furnish proper tools or to furnish sufficient help.

Now, instead of construing our pleadings levelly, the Court of Civil Appeals ceased upon that allegation where we said that it either ought to be the one or the other.

They said that put the burden upon us to prove two acts of negligence in order to succeed in the case, and that the railway company only had to disprove either proper help, either sufficient help, or proper tools in order to succeed.

Now, the second thing that the Court of Civil Appeals did, if — if Your Honors please, is that they said that all findings that the jury made in favor of the railway company was amply supported by the evidence, whereas no findings that the jury made in favor of the injured worker was supported by the evidence.

Charles E. Whittaker:

But, Mr. Guthrie —

Robert Lee Guthrie:

Yes, sir?

Charles E. Whittaker:

— how did that become an issue when you did not feel the question of the issues found in favor of the railroad were not an issue on appeal, were they?

Robert Lee Guthrie:

I don’t think so, Your Honor — Your Honor but the — the Court of Civil Appeals ignored my findings and only puts the findings in favor of the railway —

Charles E. Whittaker:

Naturally because the burden of proof was upon you to carry the risk of persuasion to the jury and —

Robert Lee Guthrie:

Yes.

Charles E. Whittaker:

— you did and they made these findings in your favor.

Robert Lee Guthrie:

That’s correct.

Charles E. Whittaker:

Now, the question is limited, is it not then, to the findings what the jury made in your favor and are they adequate to support the judgment?

Robert Lee Guthrie:

Yes, sir, I think that’s correct.

Robert Lee Guthrie:

I think that’s correct.

And I — I’m charging the Court of Civil Appeals that deliberately circumventing the findings of the jury.

Now, Your Honors, the Court of Civil Appeals of Texas did a third thing to get around this jury verdict.

They made a finding for the jury that the jury did not make for itself.

They say that the finding of the jury that the railway furnished sufficient help to do this work, and that Deen was negligence for not using additional help and they said this was the approximate cause of his injuries.

They construed that to mean that the railroad company had furnished a safe method to Deen to do this job, and therefore, since they had furnished him one safe method that they didn’t have to furnish him another.

But the jury didn’t say that, Your Honor, and we didn’t plead our case that way.

We said that both proper tools and sufficient help were necessary to do the job safely.

And if there’s going to be any implied findings made which can — which it can be made in support of the jury verdict, those implied findings have to be consistent with the findings that the jury made and consistent with the theory upon which the case was tried in the trial court.

Those implied findings are made by the trial judge and not by the Court of Civil Appeals.

Now, Your Honor, the Court of Civil Appeals in construing that this was a safe — that the jury finding of sufficient help was a safe method of doing this job meant that the Court of Civil Appeals found that the railway company furnished a safe method to do the job when the railroad company itself plead that they didn’t furnish Deen any method to do the job.

They said that he himself selected his own method and if there’s any negligence in the way he did it then that it was Deen’s own negligence.

And that they didn’t give him any instructions at all.

But even though the railway company plead that they didn’t furnish him any method for doing the work, the Court of Civil Appeals found that they furnished him a safe method for doing it.

Now furthermore, Your Honors, the position of the railway company in the trial court was that this accident would have happened no matter how many men that you had there at the time of the injury.

That when you raise the steel pot in upright position that the babbitt was going to slip out as a whole — a whole shop had been there, and Deen said it might have fallen on two ovens instead of one if more workers have been there.

But even though the railway company took that position in the trial court, the Court of Civil Appeals says that the evidence was sufficient to show that they had furnished him a safe method to do the work because they furnished him enough help to do it.

So if the Court of Civil Appeals’ decision, Your Honor, resulted in the Court of Civil Appeals construing the evidence more favorably to Deen than the railroad itself construe the evidence.

Now, is it a travesty on justice that Deen is told by the Court of Civil Appeals to limp through life without any compensation because of a fact that the Railway Company said had nothing to do with the accident?

Earl Warren:

Mr. Hudson.

Luther Hudson:

May it please the Court.

I’m here to do two things.

One is to defend the decision of the Court of Civil Appeals in this case and the other is to answer the questions to the best of my ability.

The Court asked me questions about this Court’s jurisdiction or to the extent with which the — this Court can supervise state court practice, you’ll only find out that I’m pretty ignorant of that.

That I — my knowledge of that is very superficial and you’ll get a layman’s opinion.

I think having tried this case in the trial court, having the brief in the Court of Civil Appeals in the Supreme Court of Texas and having written the brief here, I think I am familiar with the record.

I think that I’d like to defend the Court of Civil Appeals’ opinion on the three grounds that the Court there gave.

Those three grounds were these.

We start of with the fundamentals of Master and Servant law, that is that the employer’s duty is to furnish a reasonably safe way to do the work.

There are others but that’s the one that’s here.

Luther Hudson:

Now, in this case the charge and in spite of Mr. Guthrie’s statement, there is no question but the pleadings in this case were in line with what I’m about to say.

The charge that we should have furnished a reasonably safe way to do the work were that we should have furnished adequate help to do the work with safety or adequate tools to do the work with safety.

Their pleadings recognize that it was no duty to furnish two ways to do the work in safety.

There is no duty on the master to furnish several safe ways.

In this case, the jury — the jury found that we furnished adequate help.

Now, there was no tools furnished.

There was no — there was — wasn’t a way that the railroad furnished.

This work had been done before, Deen had done it before and he had always done it manually with adequate help.

On this occasion he chose not to get the help.

The help was available and the jury found it was available.

He could have done it safely with the means provided by the employer.

The employer furnished a reasonably safe means to do the work.

Now, I’m going to have to come back to that, but I want to state my three points if I may.

The second point that the Court of Civil Appeals held against the petitioner was that having by his pleadings alleged that we had the duty of furnishing either adequate help to do the work in safety or sufficient tools, he had the burden of proving that we didn’t either.

Now, that’s in accordance with our Texas rules of pleading that are applicable to all civil cases.

And since they found that we furnished adequate help, he hadn’t sustained the burden of his pleadings and consequently the jury verdict was in favor of the defendant.

The third reason was that under the record in the case, there was no evidence of negligence in failing to furnish sufficient tool.

Now, if I may come back and take those in that order, this was not a steel pot as Mr. Guthrie said, it was a cast iron pot.

And for some reason or rather when the petitioner printed the record, the pictures which were there to — would show the situation were not printed, and with Mr. Guthrie’s permission I put two of them in the back of my brief, and I think with one picture is worth at least 5000 of the lawyer’s word and you can see the situation by looking at the pictures in the pocket part of the pale green brief.

There are two pictures there and I’ll wait a second to let the Court — there are two pictures.

One of them is a picture of a man holding up this cast iron pot.

The man is Snow who was the witness in the case and the man that was helping Deen when he was hurt.

He is holding it up and the slab of babbitt is in front of it.

Now, that’s the old pot.

Now, just to the right is the — what you call a babbitt furnace.

The hole in the bottom of the pot is not a drain, this thing looks a whole lot like a kitchen sink, old fashion kitchen sink without a drain.

That’s what a babbitt pot is, a little deeper and a little longer but it looked like a kitchen sink.

That’s not a drain, that’s a crack that had been in the pot for some time and that was the reason that it had to be replaced.

Now, a babbitt pot lasts indefinitely, I think the record in this case will support the statement that it lasts five or ten years, and this wasn’t something that had to be done everyday.

Now, looking at the other picture which is Exhibit 5 and most of these pictures were identified by the plaintiff himself, you will see the picture of the so-called babbitt furnace with a new pot in it.

Luther Hudson:

That is the way it looked before Deen took it on and put it on the floor.

Just to the right of the furnace itself is the babbitt pot on the floor and the slab of — of babbitt in front of it.

Now, this is as obvious there, this is just a — a gas — a fired pot in which they keep babbitt and they heat it up and melt it.

I think Deen testified that it was kept hot all the time when the shop was going.

In that second picture there is a post, it looked silver there and to that was attached this hoist that was used primarily to raise and lower a different piece or pieces of equipment into the babbitt pot, it wasn’t put there to raise the babbitt pot out, it was to raise and lower things in it where there’d be babbitt in it.

This — what Deen was doing, he’d gotten that babbitt pot out and he got it on the floor.

And it happened that that crack in there had been discovered some three or four weeks before and he had taken the pot out, dumped the babbitt, brazed the crack, put it back in, put the babbitt back in and at that time ordered a pot.

It was two or three weeks to get in there and during that time he had to take the pot out and brazed the crack — at least three times by recollection.

On those occasions he did it just like he did this time with one exception.

On those occasions, he got five or six men to help him.

This occasion he got no one to help him until Snow came over and started helping him.

Now, he got this babbitt pot on the floor, this cast iron pot on the floor.

Mr. Guthrie said it fell, that did.

It couldn’t have fallen more than three of four inches.

It started lowering it and got it down and drop three or four inches.

Snow, who is in the same room when it — didn’t even hear it fall, but that doesn’t matter because of the fact that the babbitt pot landed exactly where he wanted it if he’d lowered it, it would have been right there, that’s where he testified, it was where he wanted it.

Nobody was injured then.

It was ready for the new pot.

Now, Deen is a good man and instead of waiting until the storeroom crew showed up with the — a new pot, he started to turn it over and it’s too heavy for him, so Snow came over and they gave it a pull.

Now, there’s nothing complicated, it couldn’t be anything more simple than dumping an oblong butter pot.

We’ve all dumped (Inaudible) or hoist it up, you just get hold of it and come over with it and she pops over and once in, runs out.

Now, that’s just what he was doing.

Actually in this particular time, he tried to turn it away from him as he had done when he had adequate help.

In which case the — of course the — the babbitt pot falls away from him and doesn’t landed on his leg.

But because they’re only two there they had to get hold of it, and I have stepped back a little bit to show the position, except I believe it was this way.

They got back and pulled it with this hand and came over like that.

I’m getting a little high but not like this.

And just as it got upright, Deen said, “Watch out for your toes.”

Almost instantaneously the slab of babbitt came out which is what he was trying to accomplish and fell on his leg because his leg was in front of it.

Now, that’s the lawsuit.

Luther Hudson:

That’s the lawsuit until we get to try it before a jury.

Now, in Texas you try all civil cases on special issues.

Special issues are questions.

The special issues are formed from the pleadings of the parties.

The plaintiff by his pleading sets the language in which these special issues will be submitted on primary liability.

The defendant by his pleading sets the form or the language in which the issues will be submitted on — in defense, the defensive issues.

The Court has to submit them the way they’re pled in other words.

And that’s what the Court did in this case.

They submitted them in his language.

Now, the bitter attack in this case on the Court of Civil Appeals is the decision of the Court of Civil Appeals which appears at page 181 of the record and since that is the principal attack and without that he gets nowhere I think.

I’m going to take — it starts at the bottom of 180, the actual language at the top of 181.

And this is the Court of Civil Appeals’ holding, “As heretofore shown, the jury found the railroad company did not fail to furnish more men to assist Deen in removing the babbitt.

That it did not fail to give Deen proper supervision at the time of the inquiry.

That Deen was negligent in failing to obtain additional help to remove the babbitt and that such negligence was the proximate cause of his injury.

We think said answers considered in connection with the record must be construed as a finding that sufficient men were available to help Deen remove the babbitt with safety.”

Now, that’s what the Court of Civil Appeals construed this jury verdict has been.

I’ve got to go back and explain another thing.

I — I’m accused by petitioner here of having trying to initiate this Court into the intricacies of Texas special issue practice.

And I either had to put it in my brief or rely on Mr. Justice Clark’s recollection and I thought it’s safer to put it in the briefs.

That will excuse some of the things that are in here.

Now, what happens when you get a special issue verdict in Texas is that under our rules, the court, trial court renders judgment as is required and this is a rule that’s quoted in the substance as is required by the jury’s findings, the pleadings in evidence.

It has to conform to all three.

Now, the trial court, I made a motion for judgment on the verdict, so did the plaintiff.

I made a judgment on a motion for staying a judgment on the verdict or disregarding issues one, two, and three which were the — two of the issues.

The trial court heard them and he said that the verdict was for the plaintiff.

Now, that’s what we appealled from.

That was what the appeal to the Court of Civil Appeals was.

That decision by the trial court is reviewable on appeal.

The Court of Civil Appeals took those findings in light of the pleadings and evidence and said that that verdict was the one for the defendant.

William J. Brennan, Jr.:

Will you tell me, how are we to read this determination as a finding of contributory negligence as a matter of law?

Luther Hudson:

No, sir, a finding of no negligence.

William J. Brennan, Jr.:

Well now, I don’t follow that.

It doesn’t say that there was a finding that sufficient men were furnished.

Luther Hudson:

Yes, sir.

William J. Brennan, Jr.:

It says that sufficient men were available.

Luther Hudson:

Yes, sir.

William J. Brennan, Jr.:

Right?

Luther Hudson:

Yes, sir.

William J. Brennan, Jr.:

Then it does say if it does not include a finding that the babbitt could have been thus removed with reasonable safety, we need only to further determine whether the record shows that if Deen had used sufficient help, the babbitt could have been manually removed with reasonable safety.

It is undisputed that several times recently before Deen’s injury, he, with sufficient help, had manually removed the babbitt without injury.

Deen pleaded that it was the company’s duty to either furnish tools or additional help and the jury found that additional help was furnished and Deen was negligent in not using it.

Luther Hudson:

That’s right.

William J. Brennan, Jr.:

Now, why isn’t that a finding of contributory negligence as a matter of law?

Luther Hudson:

It’s — no, sir, it’s not a finding of contributory negligent as a matter of law.

It’s a finding of contributory negligence as a matter of fact.

William J. Brennan, Jr.:

Well, all right, as a matter of fact whatever it is, it was a — it was a finding not that the company was not negligent but that Deen’s negligence was the sole cause of his injury, isn’t it?

Luther Hudson:

No, sir.

I — if I can explain —

William J. Brennan, Jr.:

Well, it’s — well, let me ask you one other question —

Luther Hudson:

Yes, sir.

I — I don’t want to —

William J. Brennan, Jr.:

Determinations are not turned under the Federal Employers’ Liability Act are they on intricacies of state practice or even on issue —

Luther Hudson:

I’m — I’m sorry, sir, I missed the first part of that question.

William J. Brennan, Jr.:

I say, determinations under the Federal Employers’ Liability Act are not made upon state procedural niceties nor indeed on state laws to negligence or contributory negligence of causation, are they?

Luther Hudson:

No, sir.

Can I — can I explain how that — how does — how the state practice fits into this picture?

It fits in just with the question you asked me first.

The — the jury answered to issue number four, if my memory is correct, that the defendant did not fail to furnish two additional men.

Now, that is the finding which the Court in the light of the record and the pleadings says was a finding that the defendant furnished adequate help to do the work with reasonable safety and that is —

William J. Brennan, Jr.:

Well, I understand that.

William J. Brennan, Jr.:

My — my difficulty is in reading either the findings or what this Court of Appeals has said as apparently you read them and tell us we should read them.

In other words, as a finding that there was no negligence and it seems to me that the plain thing which means anything, the findings both of the jury and as pleaded by the Court of Appeal is that Deen was guilty of negligence as a matter of law and doesn’t mean anything more than that?

Luther Hudson:

No, sir.

I tell you —

William J. Brennan, Jr.:

All right.

Luther Hudson:

— that’s — that’s where I get —

William J. Brennan, Jr.:

I know that’s where I — but I’m telling you my difficulty.

Luther Hudson:

That’s where I get involved in this special issue business.

That’s where we get into that.

Here, you start off with this premise that the master has the duty to furnish a reasonable safe way to do the work and that a jury has a right to find that it did or it didn’t under certain circumstances.

If the jury found that we furnished enough men to do the work with reasonable safety, then we furnished a man a reasonably safe way to do the work.

We didn’t furnish in two ways, Your Honor.

William J. Brennan, Jr.:

Well, I might — I’m not sure whether my notes are inaccurate but I think they are.

Summary of the jury findings, they start out with the first one, that the respondent failed to furnish petitioner with proper tool.

The second is that such failure was negligence and the third approximate cause of the petitioner’s injury.

Luther Hudson:

I think that’s correct.

William J. Brennan, Jr.:

Then they pick up what to me all relate to contributory negligence.

Luther Hudson:

No, sir.

William J. Brennan, Jr.:

The fourth one is that respondent did not fail to furnish one or more men in addition to the one who assisted the petitioner, that the respondent did not fail to give proper supervision of the petitioner, that petitioner’s failure and — or negligence in failing to obtain additional men that — was a proximate cause that he was not negligent in the manner and method he used, that the respondent and its supervisory employee should have reasonably anticipated that he would do it the way he attempted to do it, that the sole proximate cause of his injury was not due to his own acts, and therefore that finding negligence on the part of the employer and contributory negligence on the part of the — of Deen, they — as the statute requires him to do, evaluate the two and arrived at the result they did.

Now, it seems to me that — at least I have great difficulty in reading neither the findings or what the Court says in relation to a failure to furnish one or more men as dealing with anything except the issue of contributory negligence.

Luther Hudson:

No, sir.

I — if you read the pleadings in the case, we don’t follow the same practice they do in the federal court with reference to pleadings.

We are required to allege in detail, it saves having to go through interrogatories, request for admissions in pretrial hearings while we go by the pleading.

I try on both courts, one week in one and one to the other and sometimes it get mixed up.

But this particular situation, the pleadings alleged that we were negligent in not furnishing him a safe way to do the work either by furnishing him adequate tools or sufficient help.

Now, that was the charge of negligence.

There was another charge of negligence with reference supervision to which the jury found against him.

Now, but getting back to your — the essence of it is, Your Honor, that the obligation on the defendant was to furnish a reasonably safe way to do the work.

He said we didn’t do it because we didn’t give him enough help and if he didn’t have the help he needed tools.

The jury found that we did furnish him adequate help.

William J. Brennan, Jr.:

Well now, was that what they found?

Well, as I read it, they found that respondent did not fail to furnish one or more men —

Luther Hudson:

Yes, sir.

William J. Brennan, Jr.:

— in addition to the one who assisted the petitioner.

But is there anywhere, either in the injury finding or the Court of Appeals finding, if there is would you point it out to me, an affirmative finding that the respondent did furnish adequate help.

Luther Hudson:

Yes, sir.

I think the — what I read there, I read it again.

We think said answers are considered in connection with the record must be construed as a finding that sufficient men were available to help Deen remove the babbitt with safety.

William J. Brennan, Jr.:

Were available but does that say that they were furnished, affirmatively that they were furnished?

Luther Hudson:

Well, I don’t quarrel with Your Honor about the difference between available and furnished.

They — the record shows they were within half a block that they have been furnished to him before.

All he had to do is go ask for them.

William J. Brennan, Jr.:

Well, he didn’t as I —

Luther Hudson:

I mean they weren’t — they weren’t forced on him, Your Honor.

William J. Brennan, Jr.:

Well, I think you want to know what’s on my mind that what he (Voice Overlap) —

Luther Hudson:

Yes, sir, that’s what I’m here for.

William J. Brennan, Jr.:

Well, I think — what’s on my mind is this.

I have great difficulty, certainly they were all there and had he called upon them, perhaps this accident would never have occurred.

But the finding is that they were there but he didn’t call upon them and that — in that calling upon them he himself was guilty of negligence for which the jury diminished the verdict to which he was otherwise entitled by 45%.

Luther Hudson:

Your Honor, what you got to understand to understand my position and the position the Court of Civil Appeals as second nature to us in the state court that you see I couldn’t get an issue worded, do you find from a preponderance of the evidence that the defendant furnished sufficient number of help to do the work with reasonable safety?

I couldn’t get that issue because the plaintiff had formulated the issue on adequate help by his pleadings and they could only submit it in the form that plaintiff had alleged it.

They can’t submit it affirmatively and negatively in Texas practice.

They submitted once and that’s all.

Therefore, when they submitted once and they find it against him, although in your mind it is a negative finding, in our practice it is an affirmative finding that adequate help was furnished to do the work in safety.

William J. Brennan, Jr.:

Well, isn’t your difficulty — I don’t think of the name of the case but hasn’t this Court already said that in actions under this Act, we’re not going to be concerned with these intricacies and technicalities of state pleading?

Luther Hudson:

Well —

William J. Brennan, Jr.:

Problem of a —

Luther Hudson:

This — I’m sure you have.

I — the Brown case is one of them, that’s the one where the Georgia statute as I remembered that threw the man out on his pleadings himself.

This man — I thought the rule was and I say I’m a layman on this point.

Luther Hudson:

I thought the rule was if the state practice didn’t constitute an unreasonable obstacle to the man getting a fair trial, the State could have his own practice and I thought that was the rule, but as I say I’m a layman on that point and I wouldn’t ask the Court to do more than checking.

Anyway, I still — Your Honors got your finger on the very — very heart of the case.

The determination by the Court of Civil Appeals that this was a jury finding that adequate help was available and, Your Honor, there is no difference between furnished and available.

It hasn’t — you don’t have force it on the man.

He — it was there, all he had to do is ask for it.

Now, if he goes ahead voluntarily, do it another way, that is not a violation of the defendant’s duties.

If you —

William J. Brennan, Jr.:

But — but right after the Court says that there was a finding that sufficient men were available, then he goes on to say, “We need only to further determine whether the record shows that if Deen had used sufficient help, the babbitt could have been manually removed to a reasonable safety.”

Luther Hudson:

Yes, sir.

William J. Brennan, Jr.:

Now, isn’t that related to Deen’s own action?

In other words, the contributory negligence with which you charge him in defense and which the jury found he had in fact?

Luther Hudson:

No, sir, because of this proposition.

That the employer is only obligated to furnish one safe way to do the work, you don’t have to furnish four.

Your Honor wrote an opinion in — in — I’m awful bad on stuff, Ferguson, I believe it was, with reference to a man shipping some ice cream where they — where the — didn’t you — Your Honor —

William J. Brennan, Jr.:

That was Mr. Justice Douglas.

Luther Hudson:

Well, then Mr. Justice Douglas may remember in that case the — there was a showing that on other ships they used ice chipper to get the ice cream out, it could be done with safety.

Now, just to prove it is to get my point with Mr. Justice Brennan over, in that case it didn’t furnish him any ice chipper.

He had to go and get it out with a knife.

Now, had they furnished him an ice chipper in that case and it was standing right there where it was available to him and they would have furnished him a safe way to do the work.

And he — they would not have been negligent if he went and preferred to use a knife to reduce it to absurdity if they furnished him one safe way to with one ice chipper where they’re negligent and not furnishing him two, if not two then not three.

The — the obligation on the master, the obligation to the employer to the servant is to furnish a safe way to do the work, get him adequate supervision.

The jury found those two things in our favor, that’s why we say it’s a jury verdict for the defendant.

Now, the —

William J. Brennan, Jr.:

Well, actually all these other available workers were there because they were doing other jobs.

They were not there to do any job for Deen were they?

Luther Hudson:

No, sir.

William J. Brennan, Jr.:

And that —

Luther Hudson:

They were — they were there — they were there, the records — now, there where we got a jury finding of judgment.

I mean the question — let’s just say the jury could have found they weren’t available.

William J. Brennan, Jr.:

Yes, but on — on previous occasions, I gather, when this thing had been done, he was the one who would call upon these others, was it not?

Luther Hudson:

That’s right, sir.

William J. Brennan, Jr.:

And in this instance, he didn’t call upon them.

Luther Hudson:

That’s right, sir.

William J. Brennan, Jr.:

But they were there for any purpose of doing — helping him to do his job, at least the railroad didn’t assign them there for that purpose did they?

Luther Hudson:

As a matter of fact the supervisory employees did not know when he testified.

They didn’t know that he was going to do the job at that particular time.

William J. Brennan, Jr.:

Well, then how could possibly they — the finding that the railroad had furnished the man to do the job if they didn’t even know he was going to do the job?

Luther Hudson:

Well, the — the point is, Your Honor, there — the way they operate there, there’s bull gang they call in.

That’s a labor gang.

It is available to help people anytime they got heavy jobs.

Now, sometimes they have — sometimes they’re over here and sometimes they’re over there and you have to walk a half a block to get them, but they’re available.

They don’t — they don’t have enough men in a shop of that kind and they can’t have enough men to have five people standing along side every man when he needs it.

But I say you have — I’ll admit I’m used to it.

I’ve been doing it for 23 years in special issues.

Texas law special issues are simple to me and it’s simple to the Court of Civil Appeals down there.

Now, you say about intricacies of — of practice.

The point is — the only place you get into intricacies of Texas practice is whether or not the Court had a right to construe that finding as a finding of furnishing a reasonably safe way to do the work.

Now, if I’m wrong about the law of employer and — master and servant, that there is an obligation on the employer to furnish two or three safe ways, then we get on to the question of whether the evidence supported a finding of negligence in failing to furnish this tool.

But if I’m right that the only obligation on the employer is to furnish one safe way and that the jury finding was a finding that they furnished him a reasonably safe way to do the work then there is a complete discharge of the duty and therefore no negligence.

Now, that’s where I say there’s no negligence, Your Honor.

Hugo L. Black:

Now, what about the finding in number 15?

Luther Hudson:

I beg your pardon sir?

Hugo L. Black:

Finding number 15 in connection to this one.

Luther Hudson:

I don’t remember it by a number judge —

Hugo L. Black:

I said do you find from a preponderance of the evidence that the defendant railway company had supervised the (Inaudible) or whatever it is, should have reasonably anticipated that the plaintiff would perform the work which caused his injuries in the way and manner in which he did this (Voice Overlap) —

Luther Hudson:

Yes, sir, that’s — excuse me.

That’s a finding that they would expect him to do it manually by hand.

That is a finding that they would expect him to do it manually by hand.

Hugo L. Black:

Well, it says the manner which he did it.

Luther Hudson:

Well, he did it by hand is distinct from some mechanical method.

Hugo L. Black:

He did it without any help too, without the help you say that he suppose to have.

Luther Hudson:

Yes, sir.

Jury found that he should have had — that he could have had the help, Your Honor.

Now, I don’t know how much time I’ve got left so I just very briefly hit this last one.

I’m skipping over the question of Texas pleading.

At Texas —

Hugo L. Black:

What about this — may I ask you this, I don’t quite understand this number 13.

Do you find from a preponderance of the evidence that the plaintiff was negligent in the manner and method used in doing the work from the time he sustained the injuries?

Answer – yes or no.

Answer – no.

Luther Hudson:

That’s right, manually.

It was negligence to do it manually.

They couldn’t find — they couldn’t find it was negligence consistently.

Hugo L. Black:

You suppose the jury understood that manually?

Luther Hudson:

Well, they didn’t, Judge, I argued pretty loud and long and I — as I say, I can get —

Hugo L. Black:

Did you ask for it?

Did you ask for the charge in that — in those words?

Luther Hudson:

Yes, sir.

Hugo L. Black:

Manually?

Luther Hudson:

No, no, no, manually.

No, sir, and then — in the language it’s there.

I think that’s one of my requested issues.

Hugo L. Black:

Why didn’t you put manually in if that’s what you meant?

Luther Hudson:

I’d hadn’t plead it that way, Judge.

I’ve said the way and manner, and we have to submit them the way we had it pleaded.

Hugo L. Black:

When you say we have to consider, it means manually?

Luther Hudson:

Oh, I don’t say you have to, Judge, I don’t —

Hugo L. Black:

Well, I — I’m just — I was trying to get just what it was.

Luther Hudson:

On that — that’s what it — that’s what it meant to me and that’s what it meant to the appellate court.

Now, don’t ask me where I could — put a finger on where they said that but that’s what it meant, that’s where we tried this lawsuit — where we tried this lawsuit.

Hugo L. Black:

Well, the jury didn’t have the word “manually” though.

Luther Hudson:

No, sir.

They’ve said way and manner and the only way and manner he did it was manually.

Hugo L. Black:

He also did it with one or more persons helping him, whatever all the circumstances are out there, I would have thought that meant (Inaudible) or maybe that has nothing to do with the findings.

Luther Hudson:

Well, I don’t think it gets us —

Hugo L. Black:

Maybe it has no relevance.

Luther Hudson:

I — Mr. Justice Black, it doesn’t have anything to do with where we are now.

Does that mean my time is up?

Earl Warren:

No, the red light comes on and your time is up.

Luther Hudson:

All right, I’ll — let me take these last few minutes then to hit this issue of pleading.

We haven’t — it’s not an unreasonable rule to pleading these men designed to — to prevent plaintiffs from recovery and it works on the defendant just exactly the same way it works on the plaintiff.

And I’ll lose more cases than most people do.

It’s used on me just as much it did on anybody else.

We — what we do instead of going through this process when I’m in a federal court, I file interrogatories.

I take depositions.

I get a pretrial by a hearing and we thrash out what the issues are in the case.

And it takes a lot of time, waste the Court’s time, waste the lawyer’s time in the state court while we get pleadings.

We know what the case is about because the man has got to tell us from the pleadings.

We’re not going to be surprised.

Now, the rules of amendment are very liberal.

Up to seven days before trial, you can amend without asking the Court’s permission.

You got a right to amend as a matter of light.

After that you got a right to amend where the Court’s approval right on down to the time of judgment.

So the rules of practice on a pleading, these rules that the Court applied here and that they apply in other cases, the man is bound by his pleadings when he says, “Did you fail to do neither of two things?”

All the other man has got to prove is he did one of them to be home free.

That’s the rule that applies to everybody and it doesn’t deprive plaintiff from any substantial right.

It doesn’t interfere with the mistakes about seven times out of eight.

It doesn’t have any constitute and unreasonable obstacle in the way of the plaintiff’s lawsuit or the defendant’s defense.

It’s just our way of saving all this stuff about a pretrial hearing and interrogatories and request for admission.

It works, it works fine.

Luther Hudson:

Now, the last thing is about the evidence.

Actually, there isn’t any evidence in this case as to tools except the testimony about a C-clamp — and a C-clamp and a vise clamp and an iron clamp as I remember.

These were all invented from the witness stand by the plaintiff and — my time is up.

Earl Warren:

You may finish your sentence, Mr. Hudson.

Luther Hudson:

They are all invented by the plaintiff on the witness stand.

He testified they were dangerous and there is no — they’ve never been tried, nobody know where they’d worked or what work, where they had helped a man hurting.

They hadn’t been — the other had been used, a manual method had been used and did it work, it had been safe.

And I would say there isn’t any evidence if you get down to that point.

Earl Warren:

Mr. McCord — Mr. Guthrie, I beg your pardon.

Robert Lee Guthrie:

If the Court please.

I don’t understand the practice at all like the railway company argues, and I think that’s just camouflaged to try to conceal from this Court that the jury found in favor of this plaintiff.

Now, Your Honor, the — we use the special issues instead of the general charge.

But instead of telling the jury in general language that you must — that you must find whether the — the plaintiff committed a certain act or the defendant committed a certain act and whether this is negligence and whether that is a proximate cause.

Instead of telling them in the general charge like you would in the federal court, you simply ask those questions that way insofar as construing the verdict of the jury of rendering judgment, it’s not like it’s different for what it is in the federal court.

Now, Your Honors, we did not simply — we did not at any time plead that manual labor would be a safe way of doing this work.

If you look on page 6 of the record, about the middle of the page, you’ll see that we pled that injuries herein set forth resulting to the plaintiff were the direct and proximate result jointly and severally of the negligent acts of the defendant in the following respect.

And then look at (d) which is the — no, it’s (c), look at (c) that the defendant was negligent in not furnishing plaintiff with proper tools and then (d) that it’s negligent in not furnishing at least two additional men to assist the plaintiff.

(Voice Overlap)

Hugo L. Black:

Did the jury found that against him, didn’t it?

Robert Lee Guthrie:

Sir?

Hugo L. Black:

The jury found that in the charge again?

Robert Lee Guthrie:

Yes, sir, but they found the proper tools for us, Your Honor.

Now, we — the — the tools that we say we were entitled to is at the — the hoist which was furnished for the railway should be so equipped that — that when it lifted the steel pot with the babbitt off the furnace and that it could turn it over itself rather than have manual labor to do it.

Now, the blacksmith for the railway company said he could have made the clamps right there in his own blacksmith shop, they could have been fitted on the pot and permitted it to be turned over.

Deen said it should be done one in — in parts of his evidence he appears to testify that it might be dangerous but he explained that later and said that when he said it would be dangerous he meant that if the clamps were not securely fastened to the pot that it would be dangerous.

And so, Your Honor, there were issues of fact on — on proper tool.

Now, this exact question had come before the — the Court of Civil Appeals of Texas in 1928 and it involved the hoist just like this did, an inexperienced in a — workers for the railway company this was a hoist that was used to lift the timber on the railroad.

They had two chains that came down from the hoist and chains would fit on each side of the timber.

And one of the chains slipped and the man — the timber fell and struck the injured workman in his back.

The railway company used the same defense there that it did in this case, they said the — in our case he ought not to have stuck his leg in the way of the falling babbitt.

Robert Lee Guthrie:

In that case they said that the man ought not to have stood in the way of the falling timber.

But anyway, a fellow workman in that case said that if the hoist had been equipped with the chain at the top with a — a ring at the top so that the chain couldn’t have slipped, that the accident couldn’t have happened.

Now, the railway company in that case, Your Honor, put on the evidence as to — scientific evidence which they said would show that this chain could not be — that this ring could not be used and it was not a proper way of doing it.

Can I ask you a question?

Robert Lee Guthrie:

Yes, sir.

Is there any issue between you gentlemen other than the issue as to whether or not the Court of Civil Appeals would justify in saying that there was not enough evidence to go to the jury?

Robert Lee Guthrie:

I don’t think there is.

There’s no other issue in the case?

Robert Lee Guthrie:

I don’t think there is.

On the issue of negligence?

Robert Lee Guthrie:

I don’t think there is.

Charles E. Whittaker:

Now, that’s limited though in — is it not in its compass to whether or not there was evidence sufficient to support the verdict of the jury on the issues they found in favor of plaintiff?

Robert Lee Guthrie:

That’s true, Your Honor.

Charles E. Whittaker:

Yes.

In other words, whether there is adequate evidentiary basis here to support the finding that the railroad company was negligent in failing to furnish proper tools?

Robert Lee Guthrie:

Yes, sir.

Charles E. Whittaker:

And that’s the issue, isn’t it?

Robert Lee Guthrie:

Yes, sir.

Charles E. Whittaker:

And you say the — the evidentiary basis is adequate.

Robert Lee Guthrie:

Is adequate, yes, sir.

Charles E. Whittaker:

And your — your opponent says the contrary.

Robert Lee Guthrie:

Yes, sir.

Charles E. Whittaker:

Well, that’s the issue, isn’t it?

Robert Lee Guthrie:

Of course — of course they — they put an alternate question thereto, if the Court please.

They — they say that — that under the jury findings of sufficient help that there was a safe method to do the work and that they didn’t have to furnish two safe methods.

But I don’t think that’s correct because we didn’t plead it that way despite the way we see it.

I thank you very much.