New York, New Haven & Hartford Railroad Company v. Henagan

PETITIONER:New York, New Haven & Hartford Railroad Company
RESPONDENT:Henagan
LOCATION:Circuit Court of Montgomery County

DOCKET NO.: 38
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 364 US 441 (1960)
ARGUED: Nov 08, 1960
DECIDED: Nov 21, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – November 08, 1960 in New York, New Haven & Hartford Railroad Company v. Henagan

Earl Warren:

Number 38, New York, New Haven and Hartford Railroad Company, Petitioner, versus Mary L. Donnelly Henagan.

Mr. Deering.

Noel W. Deering:

May it please the Court.

This was the case which rose under the Federal Employers’ Liability Act and the facts are somewhat unusual.

The plaintiff below, the respondent in this Court, was a dining car waitress who was employed by the defendant, petitioner in this case, as — on the — on a dining car on the train which was en route from Boston to New York City.

And on the 11th day of October 1954, she sustained an injury when the train came to a sudden stop at the station of Providence, Rhode Island.

The circumstances of the stop with this; there was a lady by the name of Montell who had been on the station platform as the train was approaching the Baker Station stop at Providence and for some reason, apparently to commit suicide as all of the facts indicate and I think the respondent concedes, she stepped out in front of the train and the engineer in an effort to avoid running over her, an effort which is unsuccessful, brought the train to a sudden stop and this hostess in the dining car was thrown about, she was in the rear car of the train, an eight-car train, and received some injuries as a result of the sudden stop.

Now, the platform at the Providence Station is between two tracks of this particular platform.

The train was coming in on the left hand side.

The platform is somewhat on a curve, beginning at the east end of the station and the train comes around the — from Boston into the Providence Station on this curve, part of the platform but not all of that is covered by (Inaudible).

There were some baggage trucks on the station platform at the time the accident happened.

The respondent attaches great deal of significance to the presence of the baggage trucks there as having some causal connection to the injury, although I think he doesn’t claim that there was any negligence in having in there.

It was the merely part in preventing the engineer from seeing the woman on the track as soon as it was claimed he might have seen her.

The evidence indicates that as this engineer was coming along the track, he had reached the point he was going at a speed of some 13 to 15 miles an hour having slowed down to make the normal station stop which would have been some few 100 feet beyond the point where the accident happened.

And at that speed, he testified that his train would have come through a — an ordinary stop without any ajar as such as occurred in this case.

His testimony was that when he was within about 40 feet of where the woman stepped off, he saw her stepping over the first rail of the rail nearest to the platform.

Potter Stewart:

Before you go on, I just I want to get one thing clear.

The testimony was bought as to how long a distance it would have taken to make an ordinary, none emergency stop.

Noel W. Deering:

I think the testimony was that in making an odd — well, he had slowed down to make the ordinary emergency — non-emergency stop.

Potter Stewart:

At the station (Voice Overlap) —

Noel W. Deering:

At that time, and it would have to take him about 500 or 600 feet as I recall.

Potter Stewart:

500 or 600 feet.

Noel W. Deering:

500 or 600 feet, I think the testimony was that he would have taken to make the regular stop that he intended to take there.

Actually, the stop which he made was within about 80 feet in emergency and his testimony and the testimony of several witnesses who were on the platform indicated that when the woman stepped off in front of the train, he was about a 100 — he was about 40 feet although the respondent here argues that by certain testimony that the engineer gave in regard to the Providence baggage trucks on the platform, he must have been considerably farther away than that.

William J. Brennan, Jr.:

Well, where is that (Inaudible)

Noel W. Deering:

That —

William J. Brennan, Jr.:

(Inaudible)

Noel W. Deering:

That is what I understand the plaintiff’s theory is.

Yes.

William J. Brennan, Jr.:

What about (Inaudible)

Noel W. Deering:

I —

William J. Brennan, Jr.:

(Inaudible)

Noel W. Deering:

I submit that there was no evidence.

The — the plaintiff has worked it out on the theory involving the presence of baggage trucks on the platform which the engineer testified at one point that there were baggage trucks at the east end of the platform which obstructed his views and that he did not see the woman while she was on the platform but he first noticed her when she was putting one foot over the rail nearest to the platform which of course would — as I have argued here in my brief and argue now that from a place of safety on the platform to the place where the engineer saw her in the place of danger was a distance of — of perhaps two or three feet.

Testimony is at the edge of the platform to the first rail with the distance of approximately two feet.

Now, whether she had to step down from the platform and then take another step over the rail but any event the engineer said that he saw her first when she was stepping over the first rail which was two feet from the edge of the platform.

William J. Brennan, Jr.:

(Inaudible)

Noel W. Deering:

Yes, sir.

William J. Brennan, Jr.:

(Inaudible)

Noel W. Deering:

Yes, sir.

William J. Brennan, Jr.:

(Inaudible)

Noel W. Deering:

I think.

Yes, I think that was a testimony, sir.

William J. Brennan, Jr.:

In other words, (Inaudible)

Noel W. Deering:

That — that was the testimony as I recall it.

The engineer said that he would have stopped without emergency application in five or six hundred feet.

William J. Brennan, Jr.:

Was that — is it your position that (Inaudible)

Noel W. Deering:

It — it could.

Well, I don’t think the testimony of the engineer.

I don’t think he was ever asked that question whether or not within 200 or 300 feet, he could have come to an emergency stop — nonemergency stop.

I think the testimony was that he had applied his brakes for the normal station stop which would have brought the train to a nonemergency stop in 500 to 600 feet.

But that when he saw the woman on the track, after momentary hesitation, he brought his train to an emergency stop threw the train into emergency, gave at the full emergency power and that took him about 80 feet to bring his train to the stop.

And according to his testimony and the testimony whether there is only distance of about 40 feet in which he could — between the woman and the engine, affronted the engine when he first saw her.

Now, the Court of Appeals’ opinion reason that — that he may have been as close as 12 feet to her before the actual emergency application started taking place because of the stop at 80 feet, she was found some 60 feet under the — under the locomotive when it came to a stop, but the plaintiff here has argued that a nonemergency stop could have been made in the situation following out the reasoning that the — well, the argument that the plaintiff makes here that the engineer must have been at least 180 feet away rather than some 40 feet away when he saw —

William J. Brennan, Jr.:

(Inaudible)

Noel W. Deering:

There — there’s —

William J. Brennan, Jr.:

Even if the facts (Inaudible)

Noel W. Deering:

There’s — there’s no evidence Your Honor that the train could have been stopped in that distance.

Potter Stewart:

I had understood the plaintiff’s theory to be that an emergency stop would have been required even to stop the train in 180 feet.

Noel W. Deering:

But —

Potter Stewart:

By means of an emergency stop, the suicide would not have been consummated and therefore, the plaintiff in this case would not have had the guilty delusion that she was guilty of the death of the — the suicide.

Noel W. Deering:

The theory of the Court of Appeals, I think was that an emergency stop could have been made sooner than it was that even though —

Potter Stewart:

But still it would have been an emergency stop.

Noel W. Deering:

It still would have been an emergency stop.

Potter Stewart:

It would still have caused the — whatever physical injury was done to the plaintiff.

Noel W. Deering:

And still it would have caused the physical injury.

That, however, was not the argument advanced by the plaintiff before the Court of Appeals and that it is not the argument advanced for the plaintiff here and that is the reason why I’m dealing with it in that situation, but I would like the deal with both situations before I finish.

But as I say, the theory advanced consistently by the plaintiff was that the engineer could have stopped without an emergency.

The theory advanced by the Court of Appeals were adopted by the Court of Appeals whether that it couldn’t have been brought to an emergency stop but if the emergency stop could have been attempted sooner, there would have been apparently no evidence or even a scintilla of evidence in the case and the evidence was the Court of Appeals refers to as the momentary hesitation on the part of the engineer, which would have not brought the train to anything other than an emergency stop at any time.

Well now, getting on the — at the end of the case before Judge Wyzanski in the District Court, a motion for directed verdict was presented.

And Judge Wyzanski denied the motion at that time and then further motion was filed, the judgment notwithstanding with a verdict and for a new trial combined in the alternative.

And at the time the motion was allowed — dealt with, Judge Wyzanski said that he had no authority even though he felt there was no negligence in the case to directed verdict for the defendant.

And he made some rather specific comments which appear at pages 133 and 134 of the record and page 6 and 7 of my brief.

And on that, on the second motion, motion for judgment notwithstanding the verdict of motion for new trial, he said, I have endorsed as follows, “This motion would be granted by this Court if it were free to do so, but this Court construes the opinions and judgments of the Supreme Court of the United States as giving him no option but to deny the motion.

” And then he went on and made further comments as to his reasons for denying the motions, expanding somewhat the formal endorsement on the motion itself.

Now, the Court of Appeals in an attempt to (Inaudible) amplify the reason given by Judge Wyzanski for denying the motion gave an opinion on the merits of the case, but it did not reach the question of a motion for a new trial which was filed as I say in the alternative relief motion notwithstanding verdict because they said, “An appeal had not been taken from that order denying the motion for a new trial.

” In other words, an appeal was taken merely from the judgment.

And they never reached the question of whether or not the judge, trial judge had discretion to deal with the motion for new trial.

But in dealing with the question on the merits, the Court as I have indicated adopted a view different from that argued by the plaintiff below as to the theory of the happening of the accident.

The Court adopted the theory that on the engineer’s testimony, there was a scintilla of evidence of negligence towards the woman on the track.

The Court didn’t actually discuss negligence towards the hostess in the dining car who was injured, but the Court said the jury might have found a scintilla of evidence towards to the woman on the track in that, the engineer might have applied his brakes immediately upon seeing him when he was 40 feet away instead of that momentary hesitation that he made of seeing her go across and then waiting, saw her turn around and he was definitely convinced at that point that she wasn’t going to step back and then he put his brakes in emergency, I submit with the same result that he would have had — he had put them on at 40 feet rather than a shorter distance as the Court indicates that might have been done.

Now, the Court, as I say, suggests that as the scintilla of evidence and the Court said, and we submit that the Court has misapplied the rules adopted by this Court.

The Court said in reaching its conclusion that the plaintiff no longer has the burden of persuasion and actions of negligence under the Federal Act of Leave.

That only that barest possibility of causation is enough to make out a case for the jury, that only the mere scintilla of evidence to suggest the inference of any possible connection between the engineer’s possibly negligent, failure to apply the brakes sooner had arraigned down in suicide was enough to take the case to the jury.

Now, I submit that the Court has misinterpreted the opinions of this Court even though the Court there felt that it was following the opinions of this Court.

And I believe that the rule of the Court now or this Court now is act laid down in the Rogers Case, Rogers against Missouri Pacific 352 United States and in that case, the Court laid down the rule which perhaps I don’t need to reiterate but that was the — the test is whether the proofs justify with reason the conclusion that employer negligence played any part even the slightest to produce the injury or death for which the damages are sought.

Now, the proofs must justify, as I submit with reason and with reason, I submit leave some latitude to the judge in the District Court, the trial judge to determine whether or not there is sufficient evidence to submit to the jury.

Now, Judge Wyzanski clearly indicated that in his opinion, there was no evidence to submit to the jury, no evidence of negligence, but felt that he was bound to submit it to the jury.

And the Circuit Court upheld that opinion although it’s interesting that the Circuit Court did point out that in its opinion, the trial judge still does have a function of exercising through judicial dis — discretion or judicial appraisal rather of the facts in the case to determine whether or not has a question of law an issue of negligence is made out.

But then on the grounds given in this case which they gave indicate that it is pretty difficult, if not impossible to understand that that Court says for any judge in the court below to give any judicial appraisal of — of the sufficiency of evidence to where the finding of negligence if the test which they give is carried out.

Noel W. Deering:

Now, I submit that the Court, of course, wrote its opinion before this Court decided the case Inman against the Baltimore and Ohio Railroad Company in which I feel that the Court applied the doctrine of the Rogers Case and the Inman Case.

And that this Court held that in that particular case which came up from Ohio that the Court in Ohio was correct in resting a verdict for the defendant in the case — in that Court because there was not sufficient evidence to prove that there was negligence on the part of the defendant.

So I — I submit that the Inman case definitely negatives the holding of the Court of Appeals from the First Circuit that there was no further any burden on the plaintiff to prove negligence in the case.

Moreover, I think it definitely showed that something more than the mere’ scintilla of evidence in the case that must be shown in order to make out a case from the jury.

The Court say they’ll take the position that a scintilla of evidence and a scintilla of proof, the same thing.

Now, the — I — I think there’s a distinct difference between the — a scintilla of evidence even if the Court impose so far as to say that is enough to go to the jury and a scintilla of evidence that will make out a case for the jury, I don’t think has ever been by adopted by this Court.

I think that the Court clearly dealt with a situation almost identical to this in the case of Herdman against the Pennsylvania Railroad, 332 Massachusetts 518.

And the Court recalled that that was a case where a sudden stop was made and an engineer said that he stopped to avoid a train at a railroad cross — automobile at the railroad crossing and that the conductor who was in the rear tire was so much shaken up by the sudden stop of the train.

And although the plaintiff in that case relied upon the doctrine of res ipsa loquitur, I submit that that is not a significant differ — difference between that case and this case because even if the method of proof is different from that case and this case, the facts in both cases had clearly indicated the circumstances of the stop in both cases fully appear.

And the burden which the plaintiff had sustained was a proof of negligence and the Court held in the Herdman case that the proof had not been sustained and I submit —

Charles E. Whittaker:

May I ask you please, did — does the plaintiff — the petitioner here relied — the plaintiff here rely on res ipsa loquitur at all?

Noel W. Deering:

I don’t think so Your Honor.

I don’t think —

Charles E. Whittaker:

Specific negligence.

Noel W. Deering:

Specific negligence, yes sir.

But I — I submit that whether its res ipsa or rather specific negligence, the burden of proof has to be sustained by the plaintiff and that the burden of proving negligence was not sustained in this case and that the burden —

Felix Frankfurter:

This —

Noel W. Deering:

Yes, sir.

Felix Frankfurter:

I beg your pardon, no, go on.

Noel W. Deering:

And that the burden still is on the plaintiff.

That’s —

Felix Frankfurter:

I’m just going to ask whether you’re going to leave yourself room to discuss the —

Noel W. Deering:

I —

Felix Frankfurter:

— judgment of the motion for new trial —

Noel W. Deering:

I —

Felix Frankfurter:

— and all that’s involved in that particular clause.

Noel W. Deering:

I — I think — I think perhaps, I’ve got to proceed to that Your Honor.

Now, as Mr. Justice Frankfurter has suggested, there is an interesting procedural question in this case.

The Court of Appeals, although the question was before it and was fully briefed and argued merely ended up by saying that the question was not before it and it did not have to consider it, because no appeal had been taken from the order on the motion for new trial.

Now, the respondent here says that no motion — there’s nothing through the motion for a new trial anyway, because it was waived at the time of trial and of course, that isn’t so and I don’t think I’ll even spend a great deal of time arguing it.

Noel W. Deering:

Judge Wyzanski indicated almost at the outset of the hearing that he had made up his mind of what he was going to do in the case and I reached a certain point in the argument and he had said, “I’m not going to help you any here but I may help you later on,” or words to that effect and I said, “Well, apparently in view of that, there is no use for me to continue this argument any further.

” Now, Mr. Kelleher, in his brief said that amounts to waiver but I submit that nothing was further from my intention, I think the judge didn’t consider it.

I’m sure the judge didn’t consider it as any kind of waiver.

And further, it has been suggested in the other brief that some exception or objection of — should’ve been taken at that time and that that had — not having been done there was a further waiver, but getting away from the technical points that have been raised in that connection, I will try to argue the question on the merits as to the necessity or lack of necessity or taking a second appeal, an appeal from an order on a motion for a new trial.

In addition to the appeal, the Judge —

Felix Frankfurter:

That would be the argument of course presupposes that although he — it might not be a case for NOV.

It might be a case for a motion for granting a motion for a new trial.

Noel W. Deering:

That — that’s — that’s correct, Your Honor.

Felix Frankfurter:

Do you assume that or are you going to say anything about that?

Noel W. Deering:

Well —

Felix Frankfurter:

— in FELA cases.

Noel W. Deering:

In — let — let me — let me say this, Your Honor.

I — I don’t — I don’t take the position that there was another question here on substance that — that the first motion should not have been allowed, but I say this that if the first motion should not have been allowed if the Court so finds as a matter of law by then I submit that the trial judge had a right and perhaps a duty to act upon the new trial of motion.

But as I take the position that the trial judge took was that he had no more power on that motion than he had on the other motion, and that they both were thrown in the package and denied together.

Now, the Court of Appeals apparently relying upon some of the cases in the First Circuit, which I have pointed out in my brief, indicated that there was a necessity for taking an appeal from the second — from the order on the motion for new trial or the denial of the motion for new trial.

And it’s interesting to know that in certain hardship cases in the First Circuit and I think there maybe some another circuits where the time of appeal has expired on the motion for judgment that the motion — on the — on the judgment itself that the Courts have permitted but have not required up to this point, an appeal from the order on the post judgment motion.

Now, the cases which I cite here, I think indicate that most of the cases, I have pointed them out on page 24, there are several cases from the — had a — and where I see it appears that an order to permit appeal in certain cases where the appellant had lost the rights from appeal from the judgment, citing Avalon against Zismann or had mistaken his remedy.

United States against Petz and there’s a footnote there which is very interesting in that case in which the Court says that, “Probably, the proper method should have been to have appeal from the judgment that says an appeal wasn’t taken from the judgment from the state of new order.

They’re going to plead that there’s an appeal properly taken and it’s so treated.

Felix Frankfurter:

And you’re arguing that the judgment brings up a motion for new trial or is that incidental part of the judgment.

Noel W. Deering:

That’s right.

It — it covers the — the judgment.

It covers the entire situation.

Felix Frankfurter:

What —

Noel W. Deering:

And —

Felix Frankfurter:

Would you mind telling me — would you mind explaining why two such experience, appellate judges or Judge Woofgrain and Judge Hartigan and called first the trial lawyers as Judge Aldrich who should’ve — who rendered this decision at the motion for new trial required a separate appeal?

Noel W. Deering:

I don’t know, Your Honor, why — why the —

Felix Frankfurter:

You mean just that —

Noel W. Deering:

Why — why the —

Felix Frankfurter:

— (Voice Overlap) puzzled.

Felix Frankfurter:

I’m puzzled.

Noel W. Deering:

It — it was argued, I think to them by the plaintiff below at the time that it should’ve been a separate appeal.

I — I didn’t argue with that at the time because I — I consider that I’ve taken a proper appeal from the judgment and was brought up at that time before them.

And I think I merely argued it incidentally at the time of the trial, more or less a matter of common knowledge that —

Felix Frankfurter:

But you’re arguing here that although Judge Wyzanski might have been right in denying NOV, he should’ve entertained the motion for new trial as it — that they weren’t able to hide, isn’t it?

Noel W. Deering:

That’s right.

He sees —

Felix Frankfurter:

A different (Inaudible), is that it?

Noel W. Deering:

That is there were two separate motions even though combined in the same motion.

I think their —

Felix Frankfurter:

Now, what do you do with the case of Deen against Hickman in this Court, remember that case?

Noel W. Deering:

I don’t remember it, sir.

Felix Frankfurter:

It’s 358, a case coming up from Texas.

Noel W. Deering:

I — I don’t remember that.

I — I —

Felix Frankfurter:

In other words, you say ordinarily, a motion for new trial is raisable.

It’s properly to be put to trial judge and he may find that he couldn’t upset the jury’s verdict but nevertheless on considering the whole evidence, you may find the — that that would be another go at it.

Noel W. Deering:

Well, of course — of course that — that is true.

I think there — I —

Felix Frankfurter:

Was that true enough in the FELA cases?

Noel W. Deering:

I — I don’t — I don’t — I — and I haven’t — didn’t find that particular case, Your Honor, but of course, I think some of the District — Circuit Court cases which I have cited in my brief indicate the same thing that there actual — absolutely — two absolutely different things. One, motion that judge passes on as a matter of law and the other one still has a discretion on a motion for new trial.

And as the Court of Appeals points out, apparently at the end of its argument saying whether or not the — well, I think the — to say they have the question of whether the court below might properly have granted a motion for a new trial in the hope that another jury might return a verdict, more in keeping with the great weight of the evidence is not before us.

The — the defendant did not appeal from the denial to the motion for a new trial.

Charles E. Whittaker:

How could it have done so?

(Inaudible) how could it have done so?

How could you have appealed from an order denying the motion for a new trial?

Isn’t (Inaudible) required to meet from the judgment?

Noel W. Deering:

From the judgment.

That — that’s —

Charles E. Whittaker:

We dismissed them in the Eight Circuit from the appeals of something but the judgment would — it was wrong about that?

Noel W. Deering:

That’s exactly the position that I am taking that the — that the — in the appeal from — from the judgment is the only appeal that pro — properly could have been taken here because this action on the motion for new trial is encompassed within the judgment.

The judgment is — is in abeyance actually until that motion for a new trial has disposed off.

When it is disposed off, by then of course, the time starts to run under the rule and any appeal from the judgment, I submit, is a proper appeal.

Felix Frankfurter:

But — but as you point out, the cases of the First Circuit where for one reason or another, the judgment is not appealable.

They use the motion for a new trial as peg on which to hang an appeal of that.

Noel W. Deering:

As the final order in the case.

Felix Frankfurter:

Yes.

Noel W. Deering:

And that is what —

Felix Frankfurter:

So that on the generality is it — or the generality of the rule as Justice Whittaker has indicated, it is what it is.

Those cases are very different from this case.

Noel W. Deering:

That’s right.

Felix Frankfurter:

So far as that’s the way of doing just this.

Noel W. Deering:

That’s right.

Felix Frankfurter:

What I want to know is whether the rule, whether in FELA case, you are contending as you must that although there’s enough to make the judge put the case to the jury and if there’s enough to let it go to the jury, he can’t take the verdict away from the jury, he may take the verdict away on a motion for a new trial.

Noel W. Deering:

I — I submit Your Honor that that’s exactly what he could do, that is supposing, he had taken the position that he did as a matter of law, I have no authority to allow the motion NOV, yet I feel that there’s been a miscarriage of justice in this case.

Felix Frankfurter:

Although — although there was enough to go to the jury and the jury was entitled according to Rogers to give a verdict for the plaintiff.

Noel W. Deering:

Yes, I — I —

Felix Frankfurter:

You mean nevertheless, take away to the verdict on a motion for a new trial.

That’s your position.

Noel W. Deering:

I — I submit that that is so Your Honor.

Felix Frankfurter:

Well, I’m sorry you didn’t look at Deen against Hickman.

Noel W. Deering:

I’m sorry too, sir.

Earl Warren:

Mr. Kelleher.

James W. Kelleher:

Mr. Chief Justice, may it please the Court.

This is a difficult case in which to explain the plaintiff’s position.

There can’t be any question about that and to the best of my ability I shall now attempt to do so.

The plan before the Court is a reproduction of the right hand side of Exhibit 1 in this case.

Exhibit 1 is a plan scaled to 20th as to — 20 feet to the edge which shows the platform where this accident happened.

This is the arrow showing the direction, the train came in from Boston.

I’m sorry, this is the arrow showing the direction, may it please the Court.

James W. Kelleher:

The train came in from the East from Boston, on the track here marked track 3.

There’s a long platform which begins here.

The canopy over the platform begins here.

It’s called the Key Shelter.

That is held up by a number of posts.

I believe there are13 of them to the east of this kiosk.

There are two kiosks but this is the eastern most one on Exhibit 1 and we’re concerned only with that part of the platform.

I ask the Court to note also the crossing which appears at this part of the platform.

It is the crossing enabling trucks to be carried across the tracks at that point from the platform.

The Court will also notice a wooden picket fence which runs along in the south side of the track dividing this track from another which was to the south.

That fence, so far as we are concerned with the locus here is pierced by a gate at only one point, opposite to the crossing which I called the Court attention.

Now, what in essence do we say about this case?

We say it is a strong plaintiff’s negligence case at common law.

We don’t rely on scintillas.

We think the burden of proof is on the plaintiff, and have never contended otherwise, and we think that it is amply sustained by the evidence in this case, that it is a strong plaintiff’s case.

Why do we say so?

The accident was brought about by the appearance of a woman named Montell, on the track.

She was in that — on the platform, apparently, one of the persons waiting for this train, which was to make a stop on its way to New York.

Her position on this plan is placed pretty exactly and there’s no dispute about this evidence, I believe.

There is a witness named Brewster who said that he came up this stairway here and walked eastward.

He was waiting for this train also, he walked eastward to the fifth post, one, two, three, four, five and he stood there waiting for the train.

And as he stood there, Mrs. Montell, who was later killed, approached and asked him something.

There was a short conversation and she then moved 20 feet to the east, which on this plan because it is twice the size, twice the scale of the — twice the size of the exhibit, 20 feet on this plan is 2 inches.

So Brewster was here and Mrs. Montell talked with him here at the fifth post and she then moved about to that position.

There’s no substantial dispute.

I don’t believe there’s any dispute about it.

Now, the engineer says, and he was the first witness and the principal witness on liability, the engineer in a statement made prior to the trial, we saw on deposition or on discovery, motion for discovery, the engineer said that he saw this woman first when she was 40 feet away from him, she stepped into the tracks and in that pretrial statement made with the railroad people, was asked a specific question, “Did you see her step from the platform?”

And he said, “No, I did not.”

He was asked whether there was any — were any obstacles in his way and he said he didn’t recollect that there were any.

This is in the pretrial statements at the railroads.

James W. Kelleher:

It was because of that curious statement of his that he didn’t see this woman although she was only 40 feet away, but he didn’t see her step from the platform onto the track that this case was tried.

And when he appeared on the stand at the witness, it developed that there was an obstacle which prevented him from seeing her step from the platform and the obstacle was a baggage truck or trucks on the platform and he places that obstacle on the platform.

He says it was at the east end of the platform before you get to the canopy.

Looking at another exhibit which is a photograph facing east or the right of the plan, he said, “They were just beyond the crossing.”

So we feel fully justified in placing them in the most favorable position for the railroad which is where I have put the red letter B.

We think the evidence was warrant placing them farther to the east and even beyond the end of the canopy.

But we are placing them here, which is the most favorable position for the defendant.

Now, if the baggage trucks were there and Mrs. Montell was here —

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

The witness proves —

William J. Brennan, Jr.:

What — what.

James W. Kelleher:

The witness proves it —

William J. Brennan, Jr.:

Mrs. Montell (Inaudible)

James W. Kelleher:

Yes.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

He says immediately before the train arrived, as the train was coming in.

(Inaudible)

James W. Kelleher:

Yes.

It’s at page 107 to 109 is the complete testimony on this subject as I remember it.

On page 108, he’s asked before the train came in, “Can you tell us what if anything you saw there or anything that happened?”

He recounts a conversation that Mrs. Montell, the spokeswoman spoke in English that this was train to New York and so on and so on.

“That conversation took place about the Fifth Post?”

The answer is yes.

“Had she have been to your left before you engage in conversation?”

The answer, “She was to my left, yes.”

“Then after you engaged in conversation, what did she do?

The answer, “She moved back to the left again.

How far back to the left that she moved?

The answer; “About 20 feet or so.”

He does say that he did not continuously observed her until —

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

That’s correct.

That’s the answer.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

I rely on nothing in his testimony, may it please the Court.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

I rely on his only testimony and on inferences drawn from the position of the baggage trucks which he testifies too.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

There are.

Now, may I deal with —

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

One of them says five feet.

William J. Brennan, Jr.:

So, five feet (Inaudible)

James W. Kelleher:

I rely on nobody’s direct testimonies stating a measurement.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

Alright.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

May I proceed to — go into that.

May I first state, however, with respect to the witnesses who testified that the train was on top of her when she stepped off the platform and one of them says particularly that the train was five feet away.

Those witnesses were all on the platform in this general assembly.

They were farther away from the train than she was.

They were obviously looking at the worst possible angle with just any distance between the train and her.

That’s an almost impossible angle at which the judge does — she and the train were almost in the line, so where it goes with (Inaudible).

Now, may I proceed to the inference upon which we rely?

The engineer says the baggage tracks were here.

That is the most favorable testimony, the construction of his testimony — the construction most favorable to the railroad.

Mr. Brewster said that Mrs. Montell just before the train came in was here.

The engineer also said that he did not see Mrs. Montell step off the platform and he says more than that.

He said he didn’t see her stepped off the platform because the baggage trucks were in the way.

And if that is so, I submit to the Court, it necessarily follows by the laws of optics and geometry that the baggage tracks were closer to Mrs. Montell than he was when she stepped off the platform.

James W. Kelleher:

That has to be so or they would not have blocked his vision.

Furthermore, a not particularly sophisticated jury it seems to me with plan one in front of them could do this.

They can put a ruler, one end of it on hand the other Montell and other end on the position of the baggage trucks and they could draw the inference.

Indeed, they’re compelled to draw it, it seems to me from the assumptions, if I may, from the testimony, that the engineer is somewhere on the line marked by that ruler.

He is also of just above the right hand rear of the track, so he must be about where I have marked that east, when she stepped on the platform.

And a measurement —

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

Well, now —

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

I will go into that in just a moment if I may.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

Yes, sir.

William J. Brennan, Jr.:

That’s where the (Inaudible)

James W. Kelleher:

Yes, it is.

Yes Your Honor, but at any rate, before I get to that, if I may show the outline of the inference of what we’re seeing here, which I submit to the Court is not greatly sophisticated.

The engineer was up here some place where I’ve made this mark determined by the straight line drawn here.

When she stepped from the platform, and the Court will notice this platform is slightly curved and that’s the only reason the baggage trucks on the platform could’ve blocked his views.

By the time he becomes abreast of those baggage trucks, his view can no longer be blocked, but, he has a straight view along the track of this woman who by that time has taken a couple of steps since in the middle of the track where he first saw her.

Now, it’s a matter of simple measurement on the scaled plan to determine that the distance from Montell to the baggage trucks is a 180 feet.

And it follows that when the engineer was 180 feet from her, he could see her clearly with no obstructed view.

William J. Brennan, Jr.:

(Inaudible) could have brought to (Voice Overlap) —

James W. Kelleher:

No.

I —

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

If the Court will indulge me, I have had some success in explaining this case that I must take it one thing at a time.

I shall come to that in a moment if I may.

At any rate, I now suggest to the Court that the jury was abundantly warranted in finding that this engineer could and should have seen her when he is 180 feet away.

He’s going about 20 feet a second.

There’s no dispute about that.

He could and should’ve seen her for nine second seconds before he hit her.

James W. Kelleher:

The testimony and its undisputed again is that he did nothing — it did if the nine second inference is correct, he did nothing for eight seconds with a helpless woman on the track, a woman who the railroad says is an obvious suicide or at best, the woman who isn’t where she belongs, who was on a track going toward a fence, in which there is no opening to the engineer’s knowledge, and so testified to this, his is familiar with the station, no opening in the tracks.

Now, I should like to go into detail for just a moment about the second or so and what happened during that period, the second or so during which the engineer passed from this point to this point.

It connects with what he saw or should’ve seen of Mrs. Montell.

Now, if the Court please, he says very clearly that he didn’t see her step off the platform.

He didn’t see her that she was in the middle of the track and he says more than that.

He says that he was prevented from seeing her by baggage trucks.

Now, I will agree that that’s a conclusion of the witness in a sense.

John M. Harlan II:

(Inaudible)

James W. Kelleher:

Well, let me come to this.

I tried to put this to him very concretely.

I — I have given the evidence on page 16 of the brief.

I said to him there, here is the platform and I tried to illustrate it.

Here is my foot on.

Now, when I say you didn’t see her step off the platform onto the track, I mean you never saw her when she had one foot on the platform?

Answer, “No, sir.”

Question: “No doubt about that?”

Answer: “No, sir” and you say there was something that stopped you from seeing her?”

“Well, that’s why I said I corrected my statement afterwards.

There were these trucks out there.

Now, in listening to that testimony, may it please the Court, counsel tried with some further (Inaudible) to make this clear as possible at the trial and there was further examination in which we tried to put it very concretely.

It’s given on pages 16 and 17 of our brief.

He was asked, “Did you see her before she got to the first rail?”

And his answer to that is, he repeats the question, “Before she got to the first rail?

Question here.

Answer, “I didn’t see her until she got her foot over the rail in the middle of the rails.”

That’s on page 17.

Now, may I say this to the Court?

This is the plan with its scale shows that the distance from the end to the platform to the nearer rail is two and a half feet.

The testimony of a number of witnesses which I won’t refer to in detail now was that this woman didn’t — not that she dived onto the track or plunged onto the track.

The testimony was, she walked slowly onto the track and if that be so, she most certainly did not or the jury need not have found that she took her step of two and a half feet on her first step.

James W. Kelleher:

She was a woman, 52 years old and I think the jury would amply warrant the finding that she could not have arrived in the middle of the track on her first step and must have done so on her second step or at some later step.

Now, if that is so it appears very persuasively from the evidence that I can summarize that what happened is this.

When the engineer was here, Mrs. Montell was taking her first step off the platform and placing her foot between the platform and the nearer rail.

He could not see her with them because of the baggage trucks.

As he passed from here to here, the baggage trucks ceased to obscure his view and at the same time, she took her second step across the nearer rail and he saw her in the middle of the tracks and that is his testimony.

Now, that places him 180 feet from her, nine seconds away.

Now, —

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

No, that was some other evidence.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

Yes, sir.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

I think I have summarized that in this brief.

Now, what conclusions do we draw from that?

Here is an engineer, an employee of the railroad, who knows that there are dinning cars on the train, knows those dinning cars have waitresses, he knows the waitresses are serving food.

This is in the morning at breakfast time.

He knows that to serve food, you’ve got to go to a counter and get it and you’ve got to be standing.

And he knows when you say he submit that — that this woman, the plaintiff was in a peculiarly exposed position by reason of her employment.

Now, he owes her some duties of care, he owes her duty of care we say also, although we’re not directly concerned with it to persons that may appear on the track.

He owed Mrs. Montell at some degree of care when as an apparent suicide or perhaps only as bewildered woman she appeared on the track in front of him.

What should he have done?

There is a testimony as Mr. Deering says that he was coming in to make a normal station stop.

He would’ve stopped — I think the testimony is in six or eight car lengths.

Potter Stewart:

Where — where is that testimony?

Can you tell us the meaning from —

James W. Kelleher:

I think it’s at page 38.

(Inaudible)

James W. Kelleher:

That it would have making a normal station stop.

(Inaudible)

James W. Kelleher:

He says it’s a guessed.

James W. Kelleher:

There is a little more of it on page 39.

He says on page 39, that the train would practically have stopped her so for with a real length brake application in six or eight car length.

That’s about a third of the weight down on page 39.

Potter Stewart:

That’s about the length of the train into the train (Voice Overlap) —

James W. Kelleher:

Well, that was — eight cars as I remember.

Potter Stewart:

Yes.

James W. Kelleher:

On the other hand, it’s not disputed that the emergency stop which actually occurred brought the train to stop in about 80 feet.

Now, I think there is — there are intermediate types of stop which certainly could have been made here.

There is quite a difference between a normal station stop when you glide to a stop in six or eight car lengths, and an emergency stop which throws china and dishes off the tables.

William J. Brennan, Jr.:

Where is it (Inaudible)

James W. Kelleher:

As to this?

Oh, there’s a bunch of evidence of that.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

There is testimony as to the break in the various positions in which it might have been placed.

William J. Brennan, Jr.:

On what page?

James W. Kelleher:

I think that’s at page 20 — 28 if I’m not mistaken.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

Not necessarily Your Honor.

I don’t know whether he could’ve done that or not with safety to the plaintiff, I don’t know.

But we suggest what he should’ve done was this, he sees her 180 feet away, she is either an apparent suicide or she is a woman in a dangerous position who doesn’t belong where she is, he should have begun some kind of brake application immediately.

Perhaps —

Potter Stewart:

Is — is there anything in the record to show that that — what he should have begun would not have been an emergency brake application even assuming he was 180 feet away?

James W. Kelleher:

Well, there are — he describes the brake in the various positions in which it could’ve been placed.

Potter Stewart:

Well, —

James W. Kelleher:

That’s on page 27 there.

Potter Stewart:

Actually you didn’t — let me ask you this way, is there anything in the evidence to show either directly or by inference, how long it would take — how — how long a distance — a train running for 13 to 15 miles an hour would be required to make a stop and it whether it would be an emergency stop or any other kind of stop?

Is there any kind of evidence of any kind on that?

James W. Kelleher:

Well, Mr. Deering has stated and I — so far in this case has been assumed that this train would stop with an emergency stop in about 80 feet.

There was no expert testimony on this.

Potter Stewart:

Is there any evidence as to how great the distance — any other kind of stop would’ve taken?

James W. Kelleher:

Only the evidence which I have referred to with respect to the six or eight car lengths which —

Potter Stewart:

It is about 600 —

James W. Kelleher:

— normal station stop between those two.

There is no specific evidence as to how far the train would have gone with any particular break application.

Potter Stewart:

Because what you’re suggesting to us as I understand it is, assuming that the engineer should’ve seen the woman when he was 180 feet away and should’ve done — should’ve seen a woman in the track, right in front of the train that it was — that it would’ve been negligence for him at that time to apply an emergency stop

James W. Kelleher:

Yes, I am suggesting that.

Potter Stewart:

And that’s — I was wondering what the evidence was —

James W. Kelleher:

I am suggesting that —

Potter Stewart:

— before that conclusion.

James W. Kelleher:

I suggest that for this reason that he must know if he does apply an emergency stops that he is very likely to cause grave injury to persons in the position of the plaintiff, and that’s why he shouldn’t do it.

That’s why it’s negligence.

Potter Stewart:

When you see a woman a 180 feet ahead of a locomotive, moving a 15 miles an hour, it’s negligence to apply an emergency stop.

That’s — that’s what you’re telling us, isn’t it?

James W. Kelleher:

If that have been — no, that is not what I am talking about.

I don’t think that’s what happened, may it please the Court.

I don’t think that’s what happened and I don’t think that’s what the evidence shows.

The evidence shows that he didn’t apply the brake until he got within 40 feet of — of her.

It doesn’t show that he applied it when he was 180 feet away.

Felix Frankfurter:

(Inaudible)

James W. Kelleher:

If he had dealing with that hypothetical case.

If he had done so in candor, I will say that if where the evidence that he had thrown the break into full emergency way over to the right and you described its positions, I would say he was negligent to the plaintiff, yes.

(Inaudible)

James W. Kelleher:

Yes.

Because of her being exposed to this standing position.

Potter Stewart:

Suppose to quite sort of balance the rights of the woman on the track and the plaintiff (Inaudible)

James W. Kelleher:

Well, I should be the last one to say that his position was an easy one.

I think that what he would’ve done in the cases — the common law cases, I have cited one from the Court of Appeal of New York very — situation very similar to this, it suggests that he ought to start applying the brakes.

He doesn’t have to put them on full force and the important point in this case —

(Inaudible)

James W. Kelleher:

I don’t know what the answer to that is if he had done it when 180 feet away.

James W. Kelleher:

I think the jury could’ve concluded that something sort of an emergency application is made at 180 feet away would’ve permitted Mrs. Montell to escape.

But, the point in this case, and I wish now to refer to another piece of evidence that I have not yet referred to, the point in this case is that, had he made – done substantial application of the brake at this point when he got to the crossing short of a full emergency application, the plaintiff would’ve been warned of what was going on and there is a testimony to that effect that these girls listen for break applications.

They were accustomed to do so and she would have been able to perhaps assume a sitting position or at least hold on to the counter and brace herself.

The testimony here is there was absolutely no warning whatsoever.

The witness in describing this stop, the other hostess said to Judge Wyzanski in an answer to a question of his, it was just a sudden stop, period.

No warning.

Tom C. Clark:

(Inaudible)

James W. Kelleher:

Apparently, he had been having light applications so that —

Tom C. Clark:

(Inaudible)

James W. Kelleher:

Apparently that maybe so Your Honor.

Tom C. Clark:

There is no (Inaudible) isn’t it?

James W. Kelleher:

There is no testimony one way or the other.

I suppose that they would’ve heard those too.

William J. Brennan, Jr.:

(Inaudible)

James W. Kelleher:

Yes, that is clear.

Tom C. Clark:

(Inaudible)

James W. Kelleher:

Well, may it please the Court.

As I understand it, that bears on the question of contributory negligence for possible contributory negligence.

I don’t think we’re concerned with it here.

Tom C. Clark:

(Inaudible)

James W. Kelleher:

Yes, Your Honor.

On the measure of his — when one is trying to measure what a reasonable man in his position would’ve done, recognizing his position is one of some difficulty.

I think one must take into account that he knew there were these types of employees.

There is no direct evidence of such knowledge with — the railroad certainly knew that they are exposed by reason of their employment, who — if she was in danger.

The case I have cited from the New York Court of Appeals is a case very similar in its facts to this, it’s a common law case and I have decided — cited that deliberately because it is a common law case, and because I want to get away from any implication here that this is some kind of extreme case, which require some kind of extreme rule as to liability or as to quantum of evidence.

We don’t think it does and we don’t ask for the application of any such a supreme rule.

If New York Court of Appeal case is a common law action by a passenger, a seated passenger.

The train was coming along toward a crossing.

An old man was pushing a lawn mower toward the crossing.

The engineer and the fireman saw this when they were some 500 feet away, the train was going about the same speed at this one, a little slower I think.

James W. Kelleher:

They proceed on, no brake application, when they get to within a couple of hundred feet, the engineer says to the — or the fireman said to the engineer, “Hey! He’s not going to stop and the old man kept pushing his lawn mower.”

He was hit and killed.

They stopped suddenly, hit him, killed him as Mrs. Montell was killed here as a result of the sudden stop, a passenger was thrown against his seat.

So, the measure of liability was ordinary negligence and it was held that there was an ample evidence for ordinary negligence in that case.

That’s the Door case in 211 New York.

I do wish to make a — I realized that I may have gone way over my time.

I shall have to leave the new trial question to the brief if I may do so.

I wish to say and make it clear, however, having reference to a question asked by Mr. Justice Stewart that we do not — well, I — I think that a question of your as if I may say so Mr. Justice Stewart, suggested that we — we said that the — as Mrs. Montell was killed here, and because our plaintiff happen to have that peculiar time to paranoia delusion, that’s the evidence consisted in killing Mrs. Montell and —

Potter Stewart:

Let me clarify what was in my mind (Inaudible) that would help you.

I — I wanted whether it was your theory that the defendant Railroad and the exercise of ordinary care could have avoided killing Mrs. Montell or whether it was your theory in the exercise of ordinary care, the railroad could avoid making an emergency stop which is after all what caused the physical damage to the plaintiff?

James W. Kelleher:

I don’t know whether the railroad could’ve had avoided it and I don’t see how the jury could know that.

It could’ve avoided killing Mrs. Montell.

I think a finding would be warranted — the train could’ve been stopped without killing Mrs. Montell had the engineer had been as careful as he should have.

I do not know whether the engineer could’ve avoided killing her without making an emergency stop.

I think it’s probably doubtful that the jury could so find in view of the fact that she apparently just remained on the track if she approached her.

There’s no effort for her own safety, but in our mind, the liability here doesn’t depend on whether or not Mrs. Montell was killed or whether or not Mrs. Montell could’ve been saved by due care.

It is perfectly possible to take a view of this evidence which is to the effect that the engineer could’ve been entirely careful for the plaintiff and yet killed Mrs. Montell and we attach no importance to the paranoia delusion which our client unquestionably had as the result of this evidence except to show that the paranoia is causally connected with this particular event.

Potter Stewart:

Within — with this particular physical trauma that she received as a result of an —

James W. Kelleher:

Yes.

Potter Stewart:

— emergency stop.

James W. Kelleher:

Yes, but that’s the only importance we attach into the paranoia.

Potter Stewart:

And the negligence therefore has to consist in making the emergency stop, is that right?

James W. Kelleher:

Yes, yes.

Earl Warren:

Very well.

James W. Kelleher:

Thank you very much.