Dennis v. Denver & Rio Grand Western Railroad Company

PETITIONER:Dennis
RESPONDENT:Denver & Rio Grand Western Railroad Company
LOCATION:Alabama State Capitol

DOCKET NO.: 25
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 375 US 208 (1963)
ARGUED: Nov 19, 1963
DECIDED: Dec 09, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – November 19, 1963 in Dennis v. Denver & Rio Grand Western Railroad Company

Earl Warren:

Number 25, Claude Dennis, Petitioner, versus Denver & Rio Grande Western Railroad Company.

Mr. Black.

Wayne L. Black:

Mr. Chief Justice, members of the Honorable Court.

This is the case of a railroad section hand who brings his action against the Denver and Rio Grand Western Railroad Company, his employer, under the Federal Employers’ Liability Act.

He alleges that a series of events took place on January 2nd and 3rd of 1960 and that he — he was injured as a result of those events.

He filed and tried his action in the Third Judicial District Court of Salt Lake County and a jury returned the verdict in his favor in the amount of $20,000, reducing the verdict to $10,000 for contributory negligence.

The Utah State Supreme Court reversed the finding of the jury as approved by the trial court and we are here today after the granting of a petition for writ of certiorari to determine this case on its merit.

The facts of the case are simply this, an open joint between two rails had occurred some 16 miles out of Green River, Utah and it became necessary to repair this open joint.

The crew consisting of the foreman Chronopolous, a truck driver and two section men, met at 5 p.m. on the late afternoon of January 2nd, at the tool house at Green River, Utah and proceeded by track to the appointed task out on the plains of Utah some 16 miles from the closest place where people resided.

An open joint briefly is described as a situation which occurs when rails contract in extremely cold weather.

These rails are some 39 feet in length and in this particular instance, the ex — the contraction had caused an open — opening between two joints of some 1 and 3/4 inches in length.

These open joints are repaired briefly by the loosening of certain angle bars at each joint, working away from the open joint and then prying the rails toward the opening and ultimately realigning the holes between the angle bars and the rails, so that new bolts can be placed in the location on either side of the open joint.

The crew of which the plaintiff was a member, was shorthand of a Mr. Powell, Delmar Powell, who is a regular member of this crew, could not be located and so to begin with, we have a shorthanded crew.

Also, if other crews were available, if other crews were needed, our evidence and our testimony was that they were available.

We have the testimony of the foreman Chronopolous to the effect that if other crew — another crew was needed to relieve his crew, he could have asked for it, but that he didn’t do so.

Also we had testimony from the plaintiff who was a 16-year section man with much experience in this area of work who testified that the repair of an open joint isn’t in the nature of an emergency.

By the use of a Dutchman and train orders, trains can be slowed down at these open joints and can go across them at a restricted speed in very good order.

As a matter of fact on this particular night, as the night were long, three trains were slowed down thusly and proceeded across a Dutchman and to their appointed destinations.

The temperature was bitter cold.

The evidence is that the temperature range starting on this particular nights were from 10 degrees above until it reached 5 degrees below as the evening were long.

The evidence is that winds were blowing across this plain and through the cut where this open joint was located.

And that they were of such nature that the fire that this men devised by using an old railroad tie was inadequate to furnish effective heat for warming purposes.

Although, this fire was the means provided that night for warming these men in turn as they went about their appointed task.

Now, the foreman was in continuous charge throughout the night.

He made the decisions.

He issued the orders.

He decided who should work, where they should work and it was under his plan of work that these men in turn, went to the fire from time to time throughout the night in quest of warmth.

And at midnight, at midnight after these men had worked for some seven hours, the plaintiff testified that his hands were tingling.

He said they started to burn more less like your hand burns when it goes asleep.

And he notified the foreman of this fact and advised the foreman, he said, “I said it looks like my hand’s frozen to the wrench” and yet he testified —

Byron R. White:

(Voice Overlap) — he didn’t really inquire the foreman (Inaudible).

Wayne L. Black:

No.

Byron R. White:

The only efforts where he says (Inaudible).

Wayne L. Black:

That’s correct Your Honor.

He stated, quote, “I said it looks like my hand’s frozen to that wrench.”

Byron R. White:

(Inaudible)

Wayne L. Black:

Yes Your Honor.

And the foreman himself testified, question – Now during this particular night, Mr. Chronopolous, did Mr. Dennis complained to you about the cold?

And his answer, “He did.”

As the evening were long and the night moved toward the early morning hours, the fire grew dim and two men, one of whom was the plaintiff went out in quest of some other means of warmth and they tore a tie from a track car setter, brought the tie back to where they were working and made a new fire which they used for the rest of the shift.

The evidence is that a regular shift is eight hours and our testimony is that from the tool house — back to the tool house, this evening was 12 hours.

And so, there is the evidentiary basis upon which the plaintiff brings his case before this Court today.

The temperature ranged from 10 degrees above to 5 degrees below zero during the course of these 12 hours, Your Honor.

Tom C. Clark:

Is there any evidence anyone else was frostbitten?

Wayne L. Black:

No, there isn’t Your Honor.

The only man that was frostbitten was the plaintiff and yet the other member of the crew testified that all of these men were cold during this night and the plaintiff testified that this was the coldest night he ever remembers working on such a shift, on such a job.

Now, our first point of course is that there is an evidentiary basis for a filing of neglect in this case.

And in reviewing this evidentiary basis, we call attention to the remark of Justice Holmes in the Hadley case where he said that many times, “The hole maybe greater from the some of the parts in considering questions of neglect.”

Oh, what is —

Wayne L. Black:

Here —

— the specific neglect that you claim is —

Wayne L. Black:

Here, we have Your Honor first, a situation where the foreman knowing of the nature of the task that lay ahead and having an opportunity when he could have arranged for a relief crew after a reasonable length of time to come out onto that plain and relieve this crew, failed to do so and went out to his appointed task shorthanded.

We have the second situation where the foreman at midnight being advised that the plaintiff’s hand was frozen to the wrench, advised that the plaintiff was cold in this manner and aware of the surrounding circumstances failed to relieve the plaintiff of his task but kept him out in that cold taking his turn at the fire and that to work for an additional three and one half hours of time.

Byron R. White:

(Inaudible)

Wayne L. Black:

Yes, Your Honor.

Byron R. White:

(Inaudible)

Wayne L. Black:

Yes, there is a — there is a conflict Your Honor and because we feel that the case must be taken in the light most favorable to the plaintiff here today.

We state the fact as being that he did not send the plaintiff to the track but kept him out there for an additional three and a half hours.

Arthur J. Goldberg:

(Inaudible)

Wayne L. Black:

Now —

Arthur J. Goldberg:

The jury believed that your version was (Inaudible)?

Wayne L. Black:

Yes.

The jury believed it and the trial court believed it Your Honor.

But when we reached the Utah Supreme Court, we found some disagreement.

The original opinion of the Utah Supreme Court contained an erroneous statement of fact on this particular matter, where the Utah Supreme Court stated it is undisputed that the only time he mentioned being cold, the foreman suggested that he go to the truck for that purpose and he did so.

Now, this simply wasn’t that fact because the plaintiff had denied saying and so after having this matter called to its attention, the Utah Court issued a corrected opinion and deleted this thing, deleted this statement of fact and then however, went ahead to say, however it is of significance.

Using this point, Justice White has brought up, it is of significance that other members of the crew denied this and stated and testified that at midnight after being advised of being — of the cold, the foreman sent the plaintiff to the truck and he went there.

And of course, this is the kind of fact when and factual consideration of matters by the Utah Supreme Court with which we find disagreement here today.

The Utah Supreme Court stated at page 7 of its opinion, its corrected opinion, other than the reference to its attempt to try to get the one more crew member who couldn’t be located there is no evidence that more men or crews were available.

This simply isn’t supported by the record because foreman Chronopolous testified at record 116.

Question – Now, you have the right to request help from other crews don’t you if you need them?

Answer – Yes, if I need it.

Question – If you felt that you needed help in this case, you could’ve asked for help from this other crew, couldn’t you?

Answer – Yes.

And of course that belies the statement of fact made by the Utah Supreme Court.

The Utah Supreme Court then went on to say, it must be appreciated that the railroad is in a business which literally moves on and must be kept moving.

And again, in the face of difficulty such as here arose it must resort to the best exit — expedient available to meet these responsibilities and to keep its trains running on schedule.

And then again, the jury cannot be allowed to second-guess management.

Of course, juries are allowed to second-guess management if the Court pleases, in all safe place to work cases for instance and many other cases where unsafe procedures and practices are alleged and proved in Federal Employers’ Liability Act cases.

If the management’s judgment is poor and a railroad man is injured as a result, under the Federal Employers’ Liability Act it is our position that liability attaches and the idea that management could be its own judge and jury in matters of this kind are borne to the field of the Federal Employers’ Liability Act cases.

Now, a summary of the Utah Supreme Court’s opinion reduced to simplest terms, is that the that the railroad owes no duty of supervising the attire of its men, has no responsibility for weather conditions, is immune from liability for bad judgment on the part of management and therefore can keep its employees out in freezing weather as long as it desires whether it be eight hours or 12 hours or 20 hours with absolute impunity.

It is our position that if the railroad company, it’s foreman in this instance, has a duty to exercise a judgment as to the length of time that its men can reasonably be kept out under such adverse conditions as existed here, then it had to the duty to exercise that judgment by exercising ordinary care in exercising that judgment.

And if a jury could find that in that judgment, exercise of ordinary care is a question of — on which reasonable minds may differ then our petition has merit here today.

Now, in the brief of the respondent, I want to quickly call attention to one or two factual mistakes.

At page 2, the statement appears, “All available section men in the area were called to assist in the repair.”

And of course, I have already read the testimony of foreman Chronopolous that if he had needed and wanted to, he could’ve asked for another crew to relieve this crew.

Again at page 4, petitioner denied that he got into the track at midnight but he did not refute the testimony of the foreman that he was told to do so.

However, at record 64, we find the following testimony from the plaintiff, “I don’t remember him telling me get in no truck.”

And then at page 5, petitioner made only one complaint about the cold at which time he was told to get into the heated cab of the truck.

And of course the testimony, the testimony of the plaintiff at record 64, “I don’t remember him telling me to get in no truck.”

Wayne L. Black:

And so at page 14, also contrary to fact is counsel’s statement that the foreman knew that petitioner was in the process of suffering injury from overexposure.

There is no such evidence in the record.

And yet the record at page 35 and 36, Question – Was the foreman there too?

Answer – Foreman and two other men.

Question – What did you say?

Answer – I said it looks like my hand’s frozen to that wrench.

Now, coming to point number 2 is our position also that the Utah Court has inappropriately found and held that the neglect of the plaintiff himself was the sole proximate cause of his injury.

In the original opinion, the Utah Supreme Court referred to plaintiff’s own neglect or error of judgment.

But in the re — corrected opinion, we find a modification of that language to plaintiff’s own conduct.

But here, we have two men, the foreman in charge of this crew, having the responsibility for his men, having the right and the duty to determine how long they shall be kept out in these weather conditions.

And taking his men out 16 miles onto an open plain, windy plain harboring around zero temperature throughout the night and keeping them there for 12 solid hours from portal-to-portal without so much as a coffee break, without so much as any relief other than occasional visits back to an inadequate fire.

And we have the plaintiff again, you’d answer, a man of limited experience trained to take and follow orders, going along with the foreman’s instructions throughout that night and the Utah Court holding that the plaintiff was negligent but that the defendant had no responsibility and was free from negligence, and that is why we’re here today.

Now, the third point which we raised in this appeal is that the doctrine of assumption of risk has been resurrected by the holding of the Utah Supreme Court.

Here is what the Utah Supreme Court said, “Neither party can be blamed for the cold weather, both were fully aware of it.

The plaintiff himself was in the best position to know about the sufficiency of his clothing and in fact holding that it’s the plaintiff’s responsibility.

He should seek some safe refuge from the cold that existed that night at his own peril.

He should meet head on the foreman who was in charge of this crew and resist the duties that were assigned by that foreman at his peril.”

And of course, this is contrary to the holding of the Taylor case which has stated that every message of the doctrine of assumption at risk has been obliterated from the law by the 1939 Amendment.

What — what was the amount of jury verdict?

Wayne L. Black:

20,000 reduced to 10, for contributory negligence Your Honor.

But the — they split the damages?

Wayne L. Black:

They split the damage in half.

(Inaudible)

Wayne L. Black:

And now in conclusion, we once brought before this Court, the case of Cory versus the Southern Pacific Railroad Company.

A train had come to undesired emergency stop because of the defective triple block and a truck car following along behind rammed into the rear of that train and decedent was killed.

The Utah Supreme Court held that the undesired stop which caused — may have caused the decedent’s death in a philosophical sense but was not a cause in a legal sense.

This Court reversed and stated that it would not allow the humanitarian purposes of the Federal Employers’ Liability Act to be defeated by resort to dialectical settlement.

But here again, we have the Utah Court defeating a railroader’s case in the following language, quote, “Practically any type of industrial accident could in some way have been prevented by the application of precautions perceivable by hindsight, if nothing else, the plaintiff could have stood (Inaudible).”

This hart — harsh language, it is our position and outstand the life of objective inquiry.

It cannot stand against Lavender versus Kurn where this Court stated, only where there is a complete absence of promotive facts does a reversible error of duty.

Wayne L. Black:

It cannot stand against Bailey versus Central Vermont, where this Court stated to brief — deprive railroad workers of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.

And it cannot stand against the Rogers case where this Court say — said that judicial appraisal is narrowly limited to the single inquiry, whether negligence of the employer played any part at all in producing the injury or death.

And it cannot stand against Jacob versus the City of New York, where this Court said that the right of trial by jury is a basic and fundamental feature of our system of jurisprudence, a right so fundamental and sacred to the citizens that it should be jealously guarded by the courts of our land.

The conclusion, I simply want to say that the narrow and niggardly construction of the Federal Employers’ Liability Act of which the Utah Supreme Court is guilty in this case and our judgment requires the reversal of this decision.

Potter Stewart:

Mr. Black, there seemed to have been two opinions in the Utah Supreme Court, an original opinion and then a corrected opinion, by Justice Crocker, what’s the difference between the two?

What changes were made?

Wayne L. Black:

Certain errors in the briefs, recitation of facts by the Supreme Court were called to its attention in our petition for rehearing and both errors were corrected at least some of them, by the corrected opinion.

And I wanted — I called the attention particularly to the error that I think is most significant where the Utah Court when it decided to defeat the plaintiff’s case was of the opinion that the fact was that at midnight, he had complained of the cold and had been sent to the truck where he remained the rest of the night.

Whereas the true fact was that he complained of the cold and of his fingers being frozen to the wrench at midnight, but was kept out in the cold, performing his work for an additional three and a half hours before being sent to the truck to turn it around at the very conclusion of the work.

So, we will submit this case Your Honor with this statement, this old railroad (Inaudible) is entitled to its jury verdict.

Earl Warren:

Mr. Ashton.

Clifford L. Ashton:

Mr. Chief Justice, may it please the Court.

My friend, Mr. Black, with whom I have tried many cases, has cited I think in his brief pretty well the facts in this case.

However, I think it would be important for me to cite some of the facts which I think are important to our case.

The D&RG operates in this particular area, across the Green River end up through the country about 16 miles from Green River where this accident happened.

D&RG is most that you may know, is a relatively small mountain railroad.

In the area of Green River, they have a section crew which is composed of from four to five men.

On occasions, this section crew will only have two men out and on occasions, it will have five.

On this particular occasion, there was another section crew which was adjacent to this area.

In fact, the section crew which had supervision to the very track where these acts had happened.

But this being a cold night and I think Mr. Black has stated the testimony correctly relative to this, is being a cold night, the rails had contracted and the railroad problem had developed.

And the problem which develops is that when the railroad contract it leaves an open — opening between the tracks so that there is a very serious danger of derailment.

And that therefore becomes necessary for the railroad to go over its track and correct these open — openings in the rail.

On this particular case, the group that had control of this particular track where this particular open cut had occurred had already been called out as it appears in the record, to take care of another open — opening in the rail.

And this particular crew, therefore, was called to go and take care of the opening in the rail which was on their division.

So that in the record, there is no use talking about calling other help.

True, Mr. Chronopolous said that he could have called other help.

He could have called if the Court please, but there was no other help available because on this occasion, all of the section crews were out closing these openings on the rail.

Now, these openings in the rail as the record will show, have to be closed, otherwise there is serious danger of derailment.

Now there’s a temporary device which can be improvised for a temporary time in order to get the cars over the opening and that is they put in what is called a Dutchman as Mr. Black has explained to you which is a short piece of rail which fits into the opening.

Clifford L. Ashton:

And then if they have a man there, they can take the train cross very slowly over this opening.

But the undisputed testimony is that if you leave this opening in there very long, there’s a danger that it might twist sideways and so that it will slip out so that you will have a derailment.

And therefore, this temporary measure is only placed there while the men are working on these opening cuts and is not, and this is the decision of management, is not permitted to exist except temporarily while work construction is being — is in progress.

On this particular night, there were six trains that were scheduled to go through this particular area.

In fact when this section crew got there on this occasion, one train was already waiting and this, I don’t think suggested and I don’t think should be held and I don’t think the jury so found that the railroad is obligated to shutdown its operations during the night until it’s daylight and until the weather is warm enough that they can make this correction in the opening in the gap.

I don’t even think Mr. Black suggests that.

The question is how are we to do this work in the most reasonable manner?

But Mr. Chronopolous, when he was called and told that there was a train waiting at this opening in the rail, called out his section crew.

He couldn’t find one of them.

One of them was missing, so he took only four.

Before he took these men out, he noticed their clothing and he noticed that the plaintiff did not have on overshoes and that the plaintiff didn’t have on woolen mittens like the rest.

The plaintiff apparently had on two pair of gloves, a canvass glove and rubber glove which fit over this.

Now, the plaintiff was a section man who had worked in this particular area where he lived most of his life and he worked for the railroad for 16 years.

And some comment was made by the section foreman and some discussion was had, he thought he was dressed warm enough and the plaintiff said, he thought he was and so they went out to the particular job.

When they got out there, the first thing they did was split some ties and build two fires.

The way they do this worked two men worked on each joint.

They separate the joint and then they go on pull the 39 foot rails up gradually and they have to go several lanes back in order to bring up enough to fill in the gap.

Two men worked on each joint, it is suggested by Mr. Black that we should’ve had more help.

I don’t know how we could’ve had more help when nor help is not available.

But if we had, how that could’ve changed the nature of the work, two men working on each joint and having to wait until a rail was moved and the record will bear this out.

During the evening, the plaintiff indicated as has been indicated by Your Honor, that his hand was frozen to a particular wrench which he was working, which he had a glove.

He did not report to the foreman that this was in anyway doing him any damage.

He simply said that his hand was frozen.

He said, however, in the trial, that at that time, he felt a tingling sensation in his hand.

This — not was in anyway — this was in no way communicated to his foreman.

Then there’s a dispute in the evidence and of course, I agree with Mr. Black, we must indulge every inference in favor of the facts for the plaintiff.

There’s a dispute.

The plaintiff doesn’t remember whether he was in the truck — truck a half hour or not.

All the other witnesses testified that he claimed he was cold about midnight and he got in the truck and remained in the truck until they left the shift about 4 o’clock, which would mean he would be — taking the testimony, if their testimony is correct, and I shouldn’t even be wasting Your Honors’ time with it because we must take his testimony, which he said, “He couldn’t remember if he was in there about a half hour.”

He then went back and found out the next day.

Clifford L. Ashton:

He, for the first time, found out that he was having this difficulty in his hand.

Now, it seems to me that the case is relatively simple.

It gets to this, is the — does the railroad have a duty to see that a man is properly clothed before he goes out on the job.

Even if there is that duty and no case is so — it certainly so held at this point.

Even if that’s — it has that duty, the plaintiff himself said he was properly clothed even though the foreman had some doubts about it.

And he said, “He, himself knew when he was warm and when he could go to the fire.”

There is some suggestion in the case — in the argument that this man was not permitted to go to the fire unless the foreman permitted him to do so.

That is not the evidence in this case and I appeal to the record which Your Honors of course, will see.

He is told — in the record is undisputed that he could go to the fire anytime he wanted to.

That he himself was the best judge if when he was cold and when he needed to go to the fire.

There is no evidence anywhere in the record that anytime that he asked to go to the fire was not permitted to do so.

There is no evidence even that when he indicated he was cold, that he was not permitted to go into the truck even though he says, he does not remember that, he did not refute on close questioning in court that the foreman had invited him to do so.

He said, he could not remember that.

Byron R. White:

But if the —

Clifford L. Ashton:

(Voice Overlap)

Byron R. White:

Go ahead Brother.

Arthur J. Goldberg:

(Inaudible)

Clifford L. Ashton:

I don’t — I don’t know if I am or not if the Court please.

I don’t think it makes any difference, does it really?

Arthur J. Goldberg:

(Inaudible)

Clifford L. Ashton:

I don’t think it makes any difference really in this particular case unless to the thing that he’s assuming is the risk, it is something that was created by railroad — through the railroad’s negligence.

Certainly, his assumption of risk, weather conditions, wouldn’t make the railroad liable, unless the railroad of course, it’s something itself that was negligence and I — I — I can see Your Honors’ point and it maybe well taken.

I don’t think it makes a difference in this case, unless you can show that the thing that he assumed, the risk he assumed was something created by the negligence of the railroad because certainly, the weather condition itself is not anything that would make the railroad liable.

He assumed the risk of that.

It might possibly if you want to reach that point, relieve him of contributory negligence.

But, I don’t think that point really gets into this case.

Byron R. White:

Let’s assume that — that the man had a — the foreman had seen him working without gloves at all on this night, and you say there’s no duty, I guess you just mean that, there’s no duty if the fellow want to work without gloves —

Clifford L. Ashton:

Well — frankly, do I have to get there Your Honor?

Unless you’re going to say that there’s some paternalistic duty on the part of the railroad to see that men are properly clothed, they are themselves the best judges of what is adequate clothing for them.

Unless you’re going to say and no court yet have said that it’s a duty of the railroad to see if these men are clothed in certain ways to protect themselves against the weather.

Byron R. White:

As I understand the record, the — when this man showed up to work, the foreman noticed he is wearing these — these white cotton gloves.

And there’s no evidence — I don’t see any evidence in the record that at that time there is — that he knew that he had two pairs of gloves, he had testified that four or five hours after the job begun he noticed he is wearing another pair of gloves.

Clifford L. Ashton:

Yes.

But he also, I think in the record would bear me out, had worked for this man 16 years and that was this man custom and habit to wear canvass gloves with rubber gloves over and I think that’s it.

So that his knowledge of that might have gone further than just what he observed on that particular occasion.

William J. Brennan, Jr.:

I just wonder, suppose the plaintiff was clad in a pair of shorts and a sweatshirt, jockey shirt or something like that, just in the — even though he assured the foreman that I’m — I’m alright, I prefer working this way in five degree below zero and no responsibility of the — paternalistic to suggest that the railroad was having a duty in that (Inaudible)?

Clifford L. Ashton:

Well Your Honor it gets to a point which you — where a direction you may want to take in this case.

Saying that our duty is to — is to see that these people are properly clothed, no court has held so — so far.

And in this particular case, the foreman asked him if he was properly clothed and looked at him, he said he was alright and described his clothing and this would be the way — had been the way he had clothed himself according to the record for 16 years.

Now, it may be.

It may be that this Court is prepared to say that we have some duty to see that men are properly clothed.

No court has so held yet.

Byron R. White:

But why — why did — why did — why did the foreman say he sent the man to the track at midnight?

Clifford L. Ashton:

Well, it was — when they — when they came down to get into the place where the work was to be done, they first have got onto a section car and they’ve gone along the track to the point designated then he sent this man back to get the truck to bring down to the point where they were going to work.

Byron R. White:

Yes.

But he said he told him to get into the truck at midnight and he stayed there?

Clifford L. Ashton:

Oh excuse me, I misunderstood your question.

The reason he told him to get in there, he said the man reported he was cold.

Byron R. White:

Then why — so he — he told him to get in the truck?

Clifford L. Ashton:

To protect himself —

Byron R. White:

And — but the —

Clifford L. Ashton:

— from the cold.

Byron R. White:

I guess the —

Clifford L. Ashton:

And that was the first indication that he had had from this man that he was being in anyway bothered by the cold.

Byron R. White:

So you think — you think he could’ve — without any breach of duty dispensed, let’s assume the foreman was correct, admitted he actually told him to get in the truck.

As far as you’re concerned, he could have dispensed with that statement, without any breach of duty?

Clifford L. Ashton:

No.

I don’t think so.

I think when it becomes apparent, when it becomes apparent that a person is suffering from cold —

Byron R. White:

Yes.

Clifford L. Ashton:

— and that there’s something that should be done and I think —

Byron R. White:

Yes.

Clifford L. Ashton:

— there’s a duty.

Byron R. White:

Well, then how we — isn’t exactly this case then?

Clifford L. Ashton:

No, I don’t think —

Byron R. White:

Accepting the — accepting the testimony of the — of the plaintiff —

Clifford L. Ashton:

No, I don’t think so.

Byron R. White:

— between (Inaudible) he says, “I’m cold.”

It — the foreman himself says, he complained about the being cold.

Clifford L. Ashton:

But he didn’t give any indication of what —

Byron R. White:

I don’t know what — I don’t know what he indicated.

Clifford L. Ashton:

Or nor do I Your Honor.

Byron R. White:

Oh I know but it certainly is consistent with the evidence —

Clifford L. Ashton:

Indicated that he was cold.

Byron R. White:

— that his hands were cold too.

Clifford L. Ashton:

Yes.

Byron R. White:

I mean as well as his ears maybe but maybe his hands too.

And the foreman — and the foreman apparently, we must believe didn’t tell him to get in the truck and take care of himself.

Clifford L. Ashton:

Well, if — if you want to take that — to the other point of that is this if the Court please that the plaintiff himself said that there was at no time that he was prevented from going over the fire to warm himself or do anything else he want to do to warm himself.

That he was the best judge of that and the one he got cold on other occasions, he went over to the fire.

Byron R. White:

That’s part of contributory negligence I suppose would have nothing to do with the duty you were talking about.

And you say there was a duty here if the — that the foreman knew —

Clifford L. Ashton:

I don’t —

Byron R. White:

— that the man was complaining that he ought to do something about it, I believe.

Clifford L. Ashton:

I don’t think that there is a duty in this case for this foreman to do anything until it became apparent to the foreman, the exercise of reasonable care that if he didn’t act, this man might be injured.

Byron R. White:

Well, if the — the fellow comes up and says, “I’m cold.

I’m really cold.”

What should the foreman do?

Clifford L. Ashton:

Well, I think the foreman should take — exercise a reasonable care.

Byron R. White:

Well, which is what?

Clifford L. Ashton:

But this foreman didn’t at any time say that he didn’t — that he didn’t take care — exercise care in that regard.

William J. Brennan, Jr.:

No, but I thought the plaintiff testified that the foreman agreed that apparently the plaintiff came to the foreman and said I’m cold.

Clifford L. Ashton:

I think —

William J. Brennan, Jr.:

And the plaintiff says that he did nothing about it and kept out there until 4 o’clock in the morning.

And true, the foreman says, “No, I didn’t.

I sent him to the truck.”

Yes, it was a duty and the jury — wouldn’t at least for the jury to say whether on those circumstances, cold night, all the rest of the circumstances there was — it was —

Clifford L. Ashton:

But I think the chief dispute that we get into there is one at a time.

There isn’t any question I don’t think in this record, that when he told the foreman he was cold, he got in the truck.

He disputes that it was at midnight.

He says it was earlier in the morning about half hour before he left.

And I think that really in the record gets to be a dispute of time.

I don’t think really in the record there’s any dispute that when he told the foreman about this matter that he got into the truck because he didn’t get into the truck but he said it didn’t happen at midnight, he didn’t recall it happen there and his best memory is he was only in the truck about a half hour.

Byron R. White:

Nevertheless, there’s a clear conflict in the testimony as to when the —

Clifford L. Ashton:

Conflict on time I think Your Honor, not on the fact —

Byron R. White:

The — that’s right —

Clifford L. Ashton:

— the foreman told him to get into the —

Byron R. White:

Exactly right.

But — but if we accept his testimony is that, I told — I told the foreman at midnight I was cold and he did not tell me to get into the truck then I stayed out after that and that’s — that’s the —

Clifford L. Ashton:

I — I — I — I appeal to the record Your Honor, we’ll have an opportunity to look to because I think our position is clear and — and your position is clear.

But I don’t think record is quite that simple on it.

I think the real conflict is on the point of time as to when this occurred.

Tom C. Clark:

What about the record on page 35 where he said at 12 o’clock that he went to a fire, the train was going by?

Clifford L. Ashton:

Yes, sir.

Tom C. Clark:

And the plaintiff said — the petitioner said, “I went to the fire.

All of us went to fire while the train was going by and I lay the wrench down there and when I did, these two fingers were clamped shut.

I had to pull them apart.

Like that, where — I’m getting the glove off — then skipping down a little bit.

He said they were — were they all right there at the time of the fire?

Question – Was foreman and there too?

Tom C. Clark:

Foreman and the other two men.

What do you say?

I said, “It looks like my hand’s frozen to that wrench.”

Clifford L. Ashton:

I think that’s the correct record.

Tom C. Clark:

So he brought it to the attention of the foreman at 12 o’clock.

Clifford L. Ashton:

Yes.

And at the time he brought to the attention of the foreman at that time if Your Honor please, they were by the fire.

Can you say that when they’re standing by the fire, the foreman there had a — then had a duty to send him into a truck to keep warm and they’re standing by fire?

Tom C. Clark:

Well, he contends as I remember that the wind was blowing through this cut so if the fire — the blaze of the fire and the heat of the fire was dissipated.

I don’t know what the —

Clifford L. Ashton:

I must concede that.

He said that he went to the fire — they went to the fire periodically for what little good it did.

And I think also in the record, he all most — he said they had almost tried to put their hands in the fire to accomplish any good from it.

William J. Brennan, Jr.:

So the wind was blowing too hard (Inaudible)?

Clifford L. Ashton:

This is correct.

This is what the record show.

Tom C. Clark:

This truck, as I read, that’s why it seemed to me that if his hands were sticking to this wrench which I understand was about four feet long.

Clifford L. Ashton:

Yes, this is a large —

Tom C. Clark:

Is that —

Clifford L. Ashton:

— wrench which they use on the bolting of these particular —

Tom C. Clark:

I’m not familiar with railroading but it appears to me that might put the foreman on notice that here’s the man that’s got a frozen hand.

Clifford L. Ashton:

Well, in any event, this time, and obviously had at this time, where they were standing by a fire, it may have put him on notice but what would he be required to do at that point?

Tom C. Clark:

I —

Clifford L. Ashton:

(Voice Overlap)

Tom C. Clark:

— suppose take him back to the hospital (Inaudible).

I don’t know what they do to that.

Clifford L. Ashton:

Well, he didn’t say he had a frozen hand, he said he was cold (Voice Overlap) —

Tom C. Clark:

That it — doesn’t that — so he kept all working till 5’oclock.

Byron R. White:

Yes, that’s the point, a suggestion that maybe different —

Clifford L. Ashton:

Well, there — there is — your — I — I certainly see your point Your Honor but I — I don’t think that the railroad under those circumstances acting as a reasonable ordinary person would have done anything other than they did.

Clifford L. Ashton:

In any event, he was by the fire, in any event he got into the truck, in any event, even taking his testimony, he wasn’t out on — right away any longer than approximately eight hours and certainly with emergency repairs, I don’t suppose we’re held to a regular shift.

I would like before I conclude, however, to indicate that the misstatements which Mr. Black alleges I — I don’t think they are.

He said that we misquote, we said, “All available section men in the area were called to assist in the repair”, and that is true.

All the assistant — all available section men in that area were called and the other section crew was out, it’s true.

Mr. Chronopolous said as I have already indicated that he could have called for extra help if he thought he needed it but he did not.

And as the record turned out, Mr. Chronopolous didn’t know this other crew was out.

If he had called, he couldn’t have got them because they were out.

He missed one man who — he was not able to contact and all the other evidence was that this work is done commonly and most often.

William J. Brennan, Jr.:

Well, suppose — suppose that he had known of — that the —

Clifford L. Ashton:

Excuse me Your Honor I didn’t hear you.

William J. Brennan, Jr.:

I — I just proposed that midnight —

(Inaudible)

William J. Brennan, Jr.:

— had a couple of frozen fingers which ultimately he lost.

Now, would it be any defense on the issue of duty that this was an emergency that he really couldn’t spare to let him go and kept him working for four hours because as you’ve suggested yourself, it was six trains going to come through there?

This thing had to be repaired and without this plaintiff, I don’t suppose that you had a crew large enough to repair it.

Clifford L. Ashton:

Certainly, I know what would have happen Your Honor if we had left that scene at work and had gone back to Green River and had got — had not — and had left that track in an unattended condition for two hours.

And if there had been a derailment, I know that we would be here and Mr. Black represented the plaintiff and had been accused that the rank has tied of negligence for doing just a very thing that is suggested we should’ve done here because this high speed trains cannot upload or operate over the —

William J. Brennan, Jr.:

I — I just wonder whether — it — it bear — whether it bears on the — on the plaintiff’s claim, assuming now a breach of duty as I’ve — this is hypothesis.

Clifford L. Ashton:

Well —

William J. Brennan, Jr.:

And that he kept on there because of the position that (Inaudible).

Clifford L. Ashton:

Well, there are nine gentlemen here of excellent judgment who will have to determine whether or not this man exercised and re-exercised reasonable care —

William J. Brennan, Jr.:

Well, I’m not —

Clifford L. Ashton:

— and whether or not —

William J. Brennan, Jr.:

I’m not sure that — I’m not sure that that’s where we — or if it’s nine.

Clifford L. Ashton:

No.

It certainly —

William J. Brennan, Jr.:

That’s their duty (Voice Overlap) —

Clifford L. Ashton:

It certainly is not unless you — unless you can say reasonable men could not differ and that of course is the point and I appreciate that.

And I just don’t think reasonable men could have said that under these circumstances, the railroad should have done or could have done anything reasonable any more than it did and the courts —

Earl Warren:

Mr. Ashton would — would the fact that they worked him 12 hours this time when the normal shift was eight hours having in mind the conditions that they were faced with, would that bear at all upon the —

Clifford L. Ashton:

I don’t think so in this, if Your Honor please, because this was an emergency repair work.

They had to do the work if they — it has been suggested in the counsel brief that we should have taken a coffee break and gone back into town and left the work and come back another hour or two later.

I don’t think that that is reasonable and I don’t think it could be found to be reasonable for the reasons that I’ve already stated here.

And of course, railroading is not an eight hour shift job.

If the Court please, sometimes, it’s a four hours and sometimes it’s a 12 hours and sometimes, I guess it’s longer.

Certainly when we have a wreck, we aren’t working on an eight-hour shift.

Earl Warren:

But I was merely talking about —

Clifford L. Ashton:

Yes.

Earl Warren:

— these conditions and —

Clifford L. Ashton:

Under this —

Earl Warren:

— the clothing of this man and the fact that he had said that he was cold and have these frozen fingers, would those factors enter into the —

Clifford L. Ashton:

Of course these factors in — enter into it Your Honor, but I don’t think they’d make an appreciable difference in this particular case.

They — the plaintiff himself said he had done this work on many occasions and had been out in weather as cold as this.

I think at one time he said this was a little colder than he had before and that he worked more than eight hours on many occasions before and this was the usual number of men who did this kind of work.

The only point that it — I think you can possibly say anything about is one that the — the — his Honor has raised about it would have, we were on a duty, put on notice, when this man start to complain about his cold hand.

Now, I think under the whole record, that looking at that, I don’t think that there’s any evidence of negligence on that particular regard.

I don’t think I care to take my full time in this matter.

The facts were pretty simple.

The law is very well-ascertained.

It’s simply a question of applying.

And I appreciate very much the very great honor of appearing before this Court.