Rogers v. Missouri Pacific Railroad Company

PETITIONER:Rogers
RESPONDENT:Missouri Pacific Railroad Company
LOCATION:Congress

DOCKET NO.: 28
DECIDED BY:
LOWER COURT:

CITATION: 352 US 500 (1957)
ARGUED: Nov 07, 1956
DECIDED: Feb 25, 1957

Facts of the case

Question

  • Oral Argument – November 07, 1956 (Part 2)
  • Audio Transcription for Oral Argument – November 07, 1956 (Part 2) in Rogers v. Missouri Pacific Railroad Company

    Audio Transcription for Oral Argument – November 07, 1956 (Part 1) in Rogers v. Missouri Pacific Railroad Company

    Earl Warren:

    Number 28, Rogers versus Missouri Pacific Railroad.

    Mark D. Eagleton:

    May it please the Court.

    Earl Warren:

    Mr. Eagleton.

    Mark D. Eagleton:

    This is an action that was brought in the St. Louis Circuit Court for damages suffered on behalf of the petitioner, James C. Rogers, while in the employ of the Missouri Pacific Railroad Company at Garner, Arkansas on July 17th, 1951.

    It was brought under the terms and provisions of the Federal Employers’ Liability Act on this — in the pleadings.

    Both parties conceded that the plaintiff and the defendant that lower courts level were subject to the provisions of that Act.

    The plaintiff, the petitioner here, proceeded to trial on April 12th, 1954, and for three days following that, recovered a judgment by the Court and the jury in a sum of $40,000.

    And after judgment have been entered, the defendant in that case, the respondent here, Missouri Pacific Railroad Company appealed to the Missouri Supreme Court, which reversed the judgment outright holding that the petitioner had not made a submissible case.

    Thereafter, this Court granted certiorari, bringing us here because of the judgment of the Supreme Court of Missouri was final as of that time.

    We contend the petitioner that the ruling of the state court was wrong, not only because it was in the teeth of the decisions of this Court, but because it based its decision on facts that were not warranted inferences and facts not warranted either by the evidence, the submission of the case or the instructions granted by the Court.

    The whole answer to the case will have to be found in the facts, and while they are somewhat extensive, they are simple in their very nature, and I will as quickly as I can, with the chronicle — chronological order, attempt to give Your Honors a review of those facts.

    In this particular case, the plaintiff, petitioner was 24 years of age at the time of his injury on July 17th, 1951.

    He’d been employed by the Railroad Company some six or seven weeks prior to that particular injury.

    At the time they were working at Garner, Arkansas on a roadbed and track that ran in general direction, north and south, the north bound track or the east track was for the north bound trains and the west track would be necessarily for the south bound trains.

    There were only two tracks.

    They cover the space when laid down on the ties and the ballast in between the ties are some 15 or 20 feet, which might be referred to as the roadbed.

    The work the petitioner was doing was the burning of weeds along the western side of this north and south track.

    These weeds have been prepared for burning previously by having then sprayed by chemical the purpose of which was indeed cause the weeds to dry and to be ready to immediate ignition when they’re torched or some force of that kind was applied.

    A particular torch that he was given to do this work was a rather improvised quart can of oil.

    It had two spouts, one on either side coming out on a 45-degree angle in one of which spouts rags serving as a wick.

    They were — were placed and on the other spout of this 45-degree angle was inserted a stick or handle about three feet long.

    The particular place of work which becomes important here was about 250 to 300 yards north of what is called the Garner Crossing.

    And the work intended was to burn these weeds which for the most part were to the west of the petitioner as he would work from south to north.

    In other words, he would be working on the west shoulder of this right of way.

    The shoulder itself was defined as being a space beginning with the western edge of the ties and extending to the west about three to three and a half feet.

    And if we look further to the west, we go down to his left as he goes north or to his west side as to what is called a dump, which is lower than the roadbed, which is up above it.

    Now, the weeds were about two and a half to three feet in width to the west of his shoulder and extending in part down into the dump.

    He would take this ignited torch and apply it to these specially prepared weeds for burning.

    On this particular case on how he succeeded with that job and how he’d gone along without any difficulty, he would have gone up to the culvert which is in question here.

    In that culvert, it was 253 yards north of the Garner Crossing where he started all of his work.

    Mark D. Eagleton:

    He remembers on the west side.

    And after getting to the crossing, he would then have gone.

    He didn’t get there, but he would have been have gone 200 yards further to the north on the west side at which time he would then cross over to the east side to do his further work.

    I mentioned that because in addition to the job of burning the weeds, he was a section man and the defendant through its foreman imposed on him and the others the duty of watching for the trains whenever they went by for hotboxes.

    Apparently, that was a paramount consideration because the foreman told him that — and told all of them, “When a train goes by, drop everything.

    Put down everything and watch the train for hotboxes.”

    And the foreman went further and said that the crew should divide their works so that some would be on the east side and some on the west side so that necessarily, they can watch as the train went by the hotboxes on the west side, which would be equally important with the hotboxes if any on the east side.

    It so happens and the record show this fact that at the time of plaintiff’s injury, the petitioner’s injury he alone was on the east side.

    Every other member of the crew was on the — he alone was on the west side, I beg your pardon.

    Every other member of the crew was on the east side so that — and he had nothing to do with assigning those other men to that position.

    He was merely assigned to do this work himself, but he was explicitly told to watch that train for hotboxes.

    So, he goes along with his torch and he sets fire to the weeds on the west side and was told to stand on the west shoulder, to stay along the west shoulder.

    He was told not to cross or attempt to cross to the east in front of the oncoming train which of course would be hazardous in and of itself.

    But he was particularly advised not to cross because the — the noise of the oncoming train would deafen the sound of another oncoming train, if one would come from the opposite direction, so that he couldn’t cross to the east.

    He couldn’t cross to the west because that’s where he was burning.

    He was burning to the left of it and the west on the shoulder and the — down into to the dump.

    He couldn’t go back to the south.

    That’s the direction he was working from, from south to north.

    The only avenue of escape from the fire once it was started would be to the north.

    And so, he goes along with his work and the understanding was that when a train was coming before a gap to the crossing, the foreman would yell “train” and would usually yell in the south bound or north bound.

    But in this particular instance, it is not of great significance, but it is in — a fact nevertheless, that the foreman did not yell “Train!”

    He didn’t give the customary notice.

    It would only be important in showing how the time was consumed.

    He didn’t give him that notice.

    And the first that the petitioner knew that a train was coming was when he heard the whistle at the crossing, some 200 yards away from him.

    Mindful of the admonition that had theretofore been given him to watch the train, he started running away from the fire which had been set to the north and he ran as far as the culvert, which was 30 to 35 yards from the point where he was last working when he heard the train.

    When he gets to the culvert, by that time, the train has overtaken him and the engine has already passed him by.

    Now, the engine is on the north bound track so that its engine on the — because its pulling on the north bound track.

    It is 15 to 20 feet east of it.

    He sets his torch down at that point, turns to the east so it’s the — watched the hotboxes and when three or four cars going at the rate of 35 to 40 — 30 to 35 miles an hour, which would be at the rate mathematically of 51 to 59 feet a second.

    Mark D. Eagleton:

    That’s purely mathematics.

    In that 51 to 59 feet, it’s like three cars go by him.

    And by that time, he feels the heat of the blaze on his face.

    As he carries his hip, it seems his eyebrows are seamed.

    He throws his left hand over his eyes and quickly backs up six or eight feet.

    And when he backs up at least six or eight feet, he has caused to fall down the embankment and suffers injury because that particular portion of the culvert onto which he backed was sloping and had loose gravel on it which he says was never permitted ordinarily to be there.

    That was kept flat and leveled so that such a man would have a safe place to walk.

    Now, he didn’t know the sloping gravel was there, as a matter of fact, because when he — the only time he was ever up at that culvert.

    This was the first day he had ever done that job in his life.

    It was the first time he’d ever seen it done.

    He’d only had this torch complete the total of 30 to 35 minutes according to the record.

    He runs out there immediately apply his attention to the east to watch this thing that only takes two to three seconds for three cars to go by.

    He feels the blaze, backs away, then down he goes.

    Now, —

    William J. Brennan, Jr.:

    What — what did the blaze come from, the — from —

    Mark D. Eagleton:

    No, from the —

    William J. Brennan, Jr.:

    — the can he was carrying?

    Mark D. Eagleton:

    NO, from the fire of the weeds.

    William J. Brennan, Jr.:

    The weeds.

    Mark D. Eagleton:

    The wind.

    What happened was that the train and the evidence shows, the train caused the north air disturbance to firm up the blaze and back upping to the south and to cause it to envelop him and to come up on top of it.

    Now, he was asked by counsel, “Didn’t you know that the train passing would cause wind?”

    And he said well he thought it would cause wind in the direction it was going, which was to the north, but he did not know that it would cause the blaze to come over the wind, to come over far enough to involve the blaze to the west.

    In other words, at 15 feet or 20 feet, he was standing on the shoulder, there was a track intervening a southbound track between.

    So that we say that — that under the evidence, the very, very simple facts that these facts are — are practically without dispute, the form and everything I could — any part of this.

    It was referenced to telling the man where he had to stand, said, stand on the west shoulder.

    That’s where he stood.

    The foreman never said, “I didn’t tell him to stand there.

    No other witness said he shouldn’t have stood there.

    No other witness said that he did a single thing that wasn’t right to do.

    Mark D. Eagleton:

    He did exactly what he was told to do.

    In fact, if you examine the facts, you’ll wonder what else he could have done.

    Having in mind that there was a duty imposed on him to watch this train,” and the foreman never says, “He wasn’t supposed to watch the train, that he could avoid that.”

    Although, counsel suggested that he might well ignored the train and has he ignored the train which he was trying to do, he’s trying to do his job which the foreman told him to do and which the foreman doesn’t deny.

    He’s trying to do his job, but the counsel said that he ignored the train and watched the fire, he wouldn’t have burned.

    That isn’t even true.

    He could’ve ignored that train and he just stood there and watched the fire, just look at it.

    He was burned back to the face, turned himself up and then looked and watched that fire.

    It would have burned with him watching it just as much as would if he was not watching it.

    The train had caused the air disturbance with just as much and envelop that he just stood there.

    The only difference is, either burn to death while standing there and watching it.

    There wasn’t anything he could do.

    He had no magic.

    He had no wand.

    He just couldn’t say, “Out!”

    He was there, had to stand and watch that fire would only then to watch it burn.

    And yet the state court said that he was — didn’t have a submissible case because he didn’t attend the fire.

    These two or three seconds, he was watching the train.

    He couldn’t do both at the same time, and they gave him no means of escape.

    They say that this culvert which was normally suppose to be kept free and clear of gravel and which was not supposed to be sloping down.

    They say, “Normally, it would be all right for the average section man to walk across it if he was walking across with this — facing the direction he’s going.

    He could walk across it readily and easily, to grab at that.

    He could, normally.”

    And they say, “He was negligent,” they say in their answer in backing up that he shouldn’t have backed up.

    He shouldn’t have made these missteps.

    He should’ve watched where he was going.

    That to me seems somewhat utterly ridiculous to say that you first give a man a job to do.

    Tell him expressly where to stand, tell him what to do then send your train along.

    He didn’t cause this disturbance.

    It did.

    Mark D. Eagleton:

    The defendant did.

    And then, when he was about to catch on fire his hair, his eyes, his eyebrows have already caught on fire, to say that when he protects himself by throwing his hand over his eyes, we’re happier now.

    He’s negligent by backing up instead of walking away.

    You ought to get caught on fire on the rear end instead of the front end.

    Well, to me, that is — is utterly ridiculous and it’s in the face of Your Honors’ decisions and many of them.

    I’ll take no further time after the counsel is finished.

    Earl Warren:

    Mr. Sommers.

    Donald B. Sommers:

    May it please the Court.

    I think that the factual situation can be limited to about six different events.

    First of all, the petitioner was given a task to perform, a several task of firing those weeds and only those weeds which had been affected by a chemical weed killer and had dried.

    He testified that they were — that he had a place about three feet wide to walk at where there was no fire on the — on this next to the track.

    That it was his job to set this torch to those weeds which had apparently some of — hadn’t been killed and others have.

    And in his own words, he burned just spots of weeds of a distance of about two and a half to three or three feet to his left.

    In other words, he just set his torch out there as he walked along.

    He testified he got along all right with the job.

    The next thing that happened was that he heard the train coming and blow the whistle crossing south of Garner Crossing.

    Ordinarily, the foreman calls the train, but the foreman was about 400 yards off the road putting in ties with the rest of them.

    That train caused him no surprise and he said so.

    When he heard the train however, he quit his firing, in his own words, he quit firing.

    Left his work and ran to the culvert which he knew was there, which he saw it was an open and obvious culvert and stood right next to it.

    Stood there while the train in his own words went — was until — the train was about a half or two-thirds of the way by.

    During this time, he watched the train for hotboxes.

    Then he felt —

    Earl Warren:

    (Voice Overlap) with instructions?

    Donald B. Sommers:

    Well, if the Court please, the petitioner did say the reason he went up there to watch this train for hotboxes was because of a previous general order of the foreman to watch trains for hotboxes.

    However, he was examined on that point and he said, affirmative to them, that he knew his job on that day was to watch and tend the fire.

    He knew his primary duty was to watch and tend that fire.

    He did not construe the foreman’s orders to mean that he should ignore the fire.

    Now, those were his own words.

    Now, —

    Earl Warren:

    Did the — did the foreman deny having given — giving him this —

    Donald B. Sommers:

    Oh, no.

    Earl Warren:

    — orders —

    Donald B. Sommers:

    That’s true.

    It’s a general order.

    All section crews, when a train goes by.

    They used to get off.

    They can’t work on the tracks when a train goes by, so they get off and if they — they look at that train as it goes by for journals.

    Earl Warren:

    Was there any question about this that his primary duty was to tend the fire?

    Was it his secondary duty to watch for — for hotboxes?

    Donald B. Sommers:

    I presume, sir, if — it is fairly inferred from this record that if the fellow could watch the hotboxes without losing control of his fire, it could — he wasn’t — he was to do so.

    He said by his own words, he did not construe the foreman’s orders to mean that he should ignore his fire however.

    And —

    Earl Warren:

    He had to — as I understand though, he had to make that decision between the fire which was blowing into his face and the train going 35 miles an hour by him, he being on a — on a very narrow plateau there that — is that right?

    Donald B. Sommers:

    I think that the — the problem of whether or not he watched the trains for hotboxes is not so important, as the fact that he in so doing ignored the fire or was he had been put out there to tend.

    Now, we don’t claim as petitioner says in his brief that he was negligent in watching his hot — by then watching the train for hotboxes.

    We don’t claim that he himself was negligent.

    The fact that he did so, certainly, doesn’t — and did so to the — in such a manner as that he would not know where his fire was burning is what is important in the case.

    The fact is that he was sent out here and — and I’m reminded of — of the times when I was a young boy in St. Joseph, Missouri, and we break the leaves out into the gutter of the street in the fall of the year and set fire to them along the gutter of the street, and cars would go by and fan those weeds from time to time, and we’d stand out there with a rake and scoop them up into piles.

    Now, certainly, that if — we know that as this fellow did that the passing vehicles are going to cause some — some impetus to the fire, but we can’t say — say it because we watched cars go by, that that’s the reason why we ignored the fire which we had set and which we knew was there and there was no one else and that he doesn’t claim someone else should’ve told him or advised him that this fire which he had set was approaching him.

    All he had to do was look and see, and that is what the situation is so far as the Missouri Court’s opinion is concerned here.

    They merely found by the own — fellow’s own evidence in the case and there was no conflict in the evidence in the case.

    Earl Warren:

    Well, isn’t there a difference between that — that situation that you’ve just stated in his position?

    As I understand it, when you were a boy and — and cleaning the — burning the leaves in the gutter, they didn’t also give you instructions to watch those cars for hotboxes or bad breaks, and you were perfectly free to move in one direction.

    Here, as I understood the counsel, I maybe mistaken but as I understood him, this man was on a narrow ledge of soft material that could break down at anytime and he was given instructions, both to watch for the fire in one direction and also watch for hotboxes in another direction.

    Donald B. Sommers:

    No, no.

    Earl Warren:

    Now, isn’t that different from your situation?

    Donald B. Sommers:

    No — I’m — it’s not to my understanding of the case but perhaps (Voice Overlap) —

    Earl Warren:

    Well, would you put me right on that.

    Donald B. Sommers:

    This dump as I understand the railroad lingo to be is the build up embankment, the roadbed.

    Donald B. Sommers:

    I — that’s what I call a dump and I think that’s what the section men call a dump.

    On top of the dump, it’s flat on top supposedly and slants at the sides.

    On top of the dump, there’s nothing infirm about the dump by the way, Mr. Chief Justice.

    There’s nothing infirm about the place where the fellow was walking.

    On top of the dump is placed a ballast which holds the ties and tracks in place.

    Earl Warren:

    All right.

    Donald B. Sommers:

    And it is simple as that.

    Now, this fellow —

    Earl Warren:

    Isn’t that loose?

    Isn’t that loose material?

    Donald B. Sommers:

    Well, no.

    Here’s the situation here.

    Earl Warren:

    No, I mean —

    Donald B. Sommers:

    Between —

    Earl Warren:

    — the gravel — the gravel and the crest rocks that you put in between the ties and the rails and along the shoulders, isn’t that loose material?

    Donald B. Sommers:

    Yes, sir.

    Earl Warren:

    Well, I thought so.

    Donald B. Sommers:

    But you see, at the testimony that’s here, there was an area of about six feet from the end of the ties up of to the crest of the dump.

    Some of it was occupied by the ballast and the other he says was a flat loose or a flat dirt surface, you see.

    Now, he comes up to this culvert.

    Earl Warren:

    Comes up to what?

    Donald B. Sommers:

    To the culvert, where he stood, which he could see was open and obvious.

    And at the culvert he says, he does and there’s no claim in this case that the culvert was improperly constructed or maintained.

    All that he says about the culvert was this, and he — said — gives two different versions on the thing.

    He says two or three different places, pages 24, 30 and 31 of the record, that when he threw his arm over his eyes, he backed up on the ballast which was properly placed as to hold the ties and rails.

    At best, the petitioner’s evidence in this case can only go to show that some of it had shaken down over what was otherwise are flat dirt surfaces, you see.

    Earl Warren:

    That some of it was what he claims —

    Donald B. Sommers:

    That’s what he test — that’s what — taking the — the evidence most favorable to petitioner as the Missouri Supreme Court did.

    Now, the question then becomes as to whether or not that condition or there was evidence sufficient in the record to create or to raise a question of negligence on the part of the respondent in that condition.

    First of all, the Missouri Court held and I think it is properly so from the state of the record in the case that there would be record — I mean, the condition was not shown to have been dangerous merely because that there were some gravel out there.

    Donald B. Sommers:

    The petitioner did not claim and it is submitted here that for the normal foreseeable use of that culvert, even assuming as petitioner claims it was to be used as a walkway.

    It can only be reasonably foreseen that it was going to be used as a walkway.

    A person could walk across it at least — with his eyes open.

    And there’s not one word of evidence in this case that it could not be — it was not entirely safe considerable for that purpose.

    Secondly, and just —

    Earl Warren:

    Before you — before you get off to that.

    Isn’t it one thing for that to be that area to be safe under normal conditions?

    Isn’t it another thing, another question as to whether it’s safe for a man has a fire on one side of him and a train moving 35 miles an hour on the other side of him and the wind caused by the train flowing in to his face and singeing his eyebrows and he with — with orders to watch both the fire and the train for fireboxes, is — isn’t there a little difference in those two situations?

    Donald B. Sommers:

    I assume, Your Honor if it could be said that it could be reasonably foreseen that by assigning this man the task of burning these weeds with a hand torch that it could be assumed that he would and with knowledge that his primary duty, in his own words, primary duty to watch and tend that fire.

    That he would ignore the fire in order to watch the train for hotboxes.

    Earl Warren:

    But my point is —

    Donald B. Sommers:

    — and then placed himself in a position where he voluntarily stood.

    No one told him to stand next to the culvert.

    For all that is shown on the record, he could have stood anywhere north of where he was or on this area three feet wide on the dirt platform.

    He stood there next to this open and obvious culvert with knowledge that the fire was on his one side and the culvert was on the other.

    And then, could it be reasonably foreseen from that that he would continue to ignore his fire which he had set and which it was his duty to tend until it caught up with him.

    And then, could it — from that, could it be reasonably assumed that he would then have to put his arm over his eyes and walk backward rapidly over a condition which is normally and otherwise entirely safe and suitable for the use.

    I submit under the doctrine of — of the cases set down here, Brady versus Southern Railroad Company where it is said by this Court that negligence must be a link in a chain of reasonably foreseeable events, and Missouri Court has held that this — this bizarre situation could not be reasonably foreseen by the Railroad Company in order to have a guard against insofar as the culvert was concerned.

    And there’s another reason also, Your Honor, there’s no attempt and petitioner does not claim now that there was evidence in this case too in a legal manner, present a question of knowledge or notice on behalf of the Railroad Company as to any alleged dangerous or defect — defective condition in this culvert whereby in the exercise of reasonable care, he could have discovered the alleged defect.

    And in the exercise of reasonable care for the safety of its employees correct —

    Under your state practice, do you have one or two — are there one or two appeals in a case of this kind in your state courts?

    Donald B. Sommers:

    There can be two.

    There — were the points in this case —

    Whether one in issue though straight to —

    Donald B. Sommers:

    Onto the provisions –1

    — the trial court to the Supreme Court?

    Donald B. Sommers:

    Excuse me, sir.

    It goes straight to the Supreme Court.

    It was divided itself and then thereafter it maybe heard by the Court en banc.

    In this case, a full hearing was denied.

    Donald B. Sommers:

    It was heard by the division and upon application for full a hearing, it was denied.

    The — the decision of the division being announced had some effect on that.

    What — what was the negligence that was charged?

    Donald B. Sommers:

    Well, the negligence was charged in two respects.

    One, that the method of work was unsafe because petitioner was given a — a torch and required to walk along the right of way to do his work.

    And two, there was negligence charged in that because of the emergency situation.

    What?

    Donald B. Sommers:

    He was required to walk upon the culvert and used it as a place of the work and because of loosened sloping gravel, it was — there was — inadequate — the loosened sloping gravel which did not provide adequate for footing under the circumstances.

    I think that’s the wording out of the petition.

    What — this wasn’t an open culvert?

    Donald B. Sommers:

    No, no, sir.

    No, sir.

    It was a drainage culvert running under the right of way as ordinary, I presume there was a —

    Well, what — what did he — turn his — turn his ankle or?

    Donald B. Sommers:

    Well — he — he slipped and fell to his buttocks.

    Slipped and fell, what?

    Donald B. Sommers:

    Slipped and fell to his buttocks.

    His feet went from underneath him as he went backwards there.

    Slipping on this loose gravel?

    Donald B. Sommers:

    That’s right.

    And he says — he says he slipped on this loose gravel which of course assuming which we do not admit, but assuming that the loose gravel did constitute a defect of the petitioner has nothing in this case alleged that the, or proved that the respondent, Railroad Company was in a — in any legal way of — of — or committed any act or omission constituting negligence.

    We didn’t know about the situation.

    They don’t contend we know about it.

    They say that this — they say that the culvert was — it was properly constructed as such, but at some time or another, we don’t know if it was five minutes or five hours or when it was.

    Some of the gravel had — have vibrated out to — out of place off the ballast.

    And of course, we’re not even charged with notice of that in this case.

    And I’m thinking, in — in any type of a negligence action wherein a safe place of work, a physical condition is changed to create a danger, the employer or master or owner of the premises must have been charged with knowledge, actual or constructive of the defect.

    Was there any evidence as to whether this culvert was constructed differently from other culverts of the same type?

    Donald B. Sommers:

    It was constructed.

    I think the evidence shows the same.

    And know there’s no issue of fact about that at all?

    Donald B. Sommers:

    No, sir.

    What the — the negligence then is having loose gravel on the top of the culvert?

    Donald B. Sommers:

    Well, that’s one element of it.

    That’s one element of negligence.

    The other of course is the method of work.

    The —

    I understood you said, it’s negligent to have — towards you.

    Donald B. Sommers:

    They say that.

    And they say that — actually, by his own testimony, he shows that he had no trouble with the burning of the weeds.

    We’re not charged incidentally with negligence since — in burning these weeds in this case but only with the method whereby it was done.

    We’re not charged if it is negligent to burn these weeds because they presumably constitute somewhat of it, a — a hazard to the men who have to get on and off the trains and they should properly be removed.

    But — but it’s not contended in any ways that the — the fire as such was negligence on the part of the Railroad Company but what is contended that in some manner, the method of work was dangerous.

    But the petitioner himself said that he had absolutely no trouble burning these small patches of weeds, and he did not contend that the use of the hand torch which is alleged enhanced the danger of the fire in any way.

    Now, he did try to inject into the case a question of a fire machine, which spouted flame out onto the right of way, but — and presumably, he did that in order to show that there was another way or better way of burning the weeds than using a hand torch.

    But he only failed to come up to par in the evidence on that respect because he didn’t know anything about the fire machine.

    He had merely seen it long before he ever went to work for the railroad pass through town.

    He didn’t know anything about the duty of the crew or the operation of it or anything else.

    The only man who was old enough on the job to testify about the fire machine was the foreman.

    All the other fellows had never seen the thing used, and the fire — the foreman unequivocally and uncontradicted stated that the fire machine through out so much fire, an uncontrolled fire that was burning the creosote ties and the farmers’ adjoining pasture and — and transposed to things of that sort so they abandoned it, convert the machine to spray those weed killer out so that the weeds would wither and die.

    And thereafter, he could set the weeds with a hand torch and have a lot less fire and much less hazard, but —

    Earl Warren:

    Mr. Sommers, the thing — the thing that bothers me and that I would like to — you’d add in this — in this case is this.

    Your — your right of way may — may have been properly constructed for the — for the passage of — of trains and also, the — the burning of the weeds program that you have might — might be entirely proper.

    If there were no trains coming along at the same time, but if you try to make it — put a — have a combination of the two, the burning of the weeds while there — while there are trains going by and you — you put a man in that dangerous position and instruct him that he so not only have one duty, the duty of watching after his fire and protecting his own life.

    But you give him — give him another duty and tell him that in spite of the fact that he is watching that fire, he must also watch the passing train for hotboxes and then you leave him in this narrow position where your footing — footing is not secure and have a train passing 35 miles an hour by him and he does some act that you think under normal circumstances might be a negligent act, is he accountable for that?

    Donald B. Sommers:

    I — I’m —

    Earl Warren:

    In such times — as such times as that and should not the employer have those things in mind when he instructs the employee to both, to watch his fire from this precarious position and watch for hotboxes?

    Donald B. Sommers:

    If the Court please, the petitioner now contends in this case that there was no evidence of the manner or method or place of work, except being negligent except in this respect on page 16 of their brief, which is directly in point of what you have just said.

    The petitioner in his brief says that the respondent created an emergency situation by compelling the petitioner to watch for hotboxes at a time when it was highly dangerous for him to do so.

    It was the imposition of these concurrent and conflicting duties that made the respondent’s method of work an unsafe and dangerous, sir.

    Donald B. Sommers:

    That is their position.

    Earl Warren:

    Yes.

    Donald B. Sommers:

    Now, there are two answers to that which — excuse me, which I was getting to but I’ll — I’ll consider right now.

    In the first place, the petitioner never stated nor did he contend by his testimony that he was compelled to watch a train for hotboxes.

    He said that was the reason he left this fire, but at the same time, his own interpretation of this previous order was contrary to what they’re contending in there brief now, and that is this.

    That he knew that irregardless of what — it wouldn’t make any difference why he left the fire actually.

    The fact to the matter is he ignored his fire and he knew he did so and he stated that he did not construe the foreman’s orders or to mean that he should did so.

    Now, that was his own words.

    Earl Warren:

    Yes.

    Well, isn’t that for the jury to determine.

    Donald B. Sommers:

    Possibly so.

    Earl Warren:

    Is that a — is that a matter of law.

    Isn’t that for the jury to determine?

    Donald B. Sommers:

    Possibly so, had it been pleaded as an act of negligence in this case.

    It was not.

    That was the second reason.

    Earl Warren:

    Didn’t they plea negligence of — of the company and in terms that were broad enough to encompass that?

    Donald B. Sommers:

    There is nothing in the pleading in regard to any concurred or conflicting duties of the respondent, Your Honor, compelled on the person by the respondent.

    It is argued that that is part of the whole.

    Earl Warren:

    Did the Court decide it on the question of pleading — lack of pleadings?

    Donald B. Sommers:

    The first time it’s been raised was when they got here, Your Honor.

    To my knowledge, it’s a mere issue in the case.

    It was not even submitted as far as the instructions in the case as to whether or not he was compelled to be there by a reason of contrary and conflicting duties.

    I assume this to be a correct statement of law that —

    Earl Warren:

    Do you make a — a distinction between being compelled to do it and being instructed by his foreman to do it.

    Donald B. Sommers:

    Well, the same would apply, no.

    I mean —

    Earl Warren:

    Did you make a distinction?

    Donald B. Sommers:

    No, sir.

    But I assume that this is a correct statement of law that as Your Honors said.

    Donald B. Sommers:

    If you have this ordinarily, I say it, method of work, and it is changed to something which is unsafe as they are alleging here in their — in their brief that if they are saying that ordinarily, this men are in method of performing the work was safe, a reasonably safe one.

    But it was changed to be an unsafe one by a reason of the fact that there were concurrent and conflicting duties.

    Then, I submit that those — that — that is the reason that is negligence.

    That is the ground of negligence upon which they’re seeking to recover, and the defendant in any action is entitled to be a price of that situation in the pleading, in the issues, in the instructions to the jury and they were not in this case.

    It was not raised until this appeal here and it was never before contended that and — and the — the petition in this case —

    Earl Warren:

    Is the pleading —

    Donald B. Sommers:

    — mentioned nothing —

    Earl Warren:

    Is — is the pleading broad enough to cover that kind of negligence —

    Donald B. Sommers:

    I think not.

    Earl Warren:

    — regardless of whether it was specifically urged or a specific instruction was asked on that — on that score?

    Was the negligent — what was the language in the pleading so far as negligence of the employer was concerned?

    Donald B. Sommers:

    That on the occasion herein, they mentioned a train did pass and did cause flame, thus, to retreat and move quickly from the place of work — from — and they move quickly from the place where he was then working and to use his place of work — use that in his place of work, a part the defendant has said right of way adjoining his track that was covered with loose and sloping gravel placed it safe into certain method and then goes on to say which did not provide adequate or sufficient footing.

    Now, as to —

    Earl Warren:

    Well —

    Donald B. Sommers:

    As to the —

    Earl Warren:

    Doesn’t that raise — doesn’t that raise a question?

    Donald B. Sommers:

    That he was imposed — that the concurrent and conflicting duties were imposed upon him?

    I think not Your Honor.

    Earl Warren:

    Well, I don’t suppose you’d have to put all of the — the evidence in would you, but doesn’t raised the — the issue as to whether they were negligent in — in — in the facts of the case as he relates in there on this alleged, the train go and by and he’s required to do certain things.

    Isn’t that not enough to raise it?

    Donald B. Sommers:

    Well, I — I think it would be enough if he had proved that there was a dangerous or defective conditions as to the culvert, or that the manner or method taken according to his pleading and he goes on further to say as to the manner and method that he was required to work alongside the railroad tracks with his torch.

    Now, assuming from that, wherein that he in this case proved that those methods, that method in that place of work were not reasonably safe, and the answer I think by his own admission is that they were not except that imposed thereon, he now says, for the first time, where a concurrent and conflicting duty which changed the situation.

    Now, when you have an ordinarily reasonably safe place and method of work which is changed by some act or omission, raising a question of negligence for a jury to decide then — is not that act or omission which is the issue in the case, not the hand torch method or the gravel and so forth, and that is our position here in this Court.

    Now, here, he comes up and — and having realized that his — that his evidence didn’t come up to snaps so to speak insofar as the gravel condition was concerned.

    And realizing that his evidence did not came up to snap so far as this hand torch method of firing the right of way as the petitioner called it, enhanced the danger of fire.

    He then says, “Oh, yes”, but the concurrent and conflicting duties made it a different situation.

    Well, that different situation was not pleaded in his petitions submitted to the jury and as I recall was not argued below.

    Earl Warren:

    Well, did he — in this — in the testimony, did he not say that the foreman had — had given him instructions to — to watch the train for hotboxes at the same time he’s to be watching his fire?

    Did he not so testify?

    Donald B. Sommers:

    Well, no, not exactly that way.

    Earl Warren:

    Well, I mean in —

    Donald B. Sommers:

    Yes.

    Earl Warren:

    — in substance.

    That’s what I —

    Donald B. Sommers:

    Yes.

    Earl Warren:

    — understood (Voice Overlap) —

    Donald B. Sommers:

    Well, he — he says, the reason he went and the reason he quit firing was to go watch the train for hotboxes, sir.

    Earl Warren:

    And didn’t he say that was an instruction from his foreman to do it?

    Donald B. Sommers:

    Yes, sir.

    Earl Warren:

    All right.

    And didn’t he also testify that — that this was a narrow ledge and had a poor — a poor footing for — in such circumstances?

    Donald B. Sommers:

    The — the witnesses didn’t have anything to do with it.

    He said that when he backed up there, he slipped on some loose and sloping gravel.

    Earl Warren:

    Yes, yes.

    And — and he endeavored to — to show the loose condition of that footing, didn’t he?

    Donald B. Sommers:

    He — he did so testified that when he backed up, he — he slipped on some loose and sloping gravel.

    I think that’s about as far as it went.

    Earl Warren:

    And then, then he showed that there was a train coming 35 miles an hour.

    Donald B. Sommers:

    Yes, sir.

    Earl Warren:

    And he showed that the fire was so close that — that it burned him.

    When the — when the wind came along, it — it burned him and he — he had to move.

    Donald B. Sommers:

    At — there was some —

    Earl Warren:

    Didn’t he?

    Donald B. Sommers:

    — a test of statement that he singed his eyebrows was the extent —

    Earl Warren:

    Yes, it would.

    Have you ever had your eyebrows singed in a situation like that?

    Donald B. Sommers:

    Yes, Your Honor.

    Earl Warren:

    I — I think the man had moved pretty fast, wouldn’t he?

    Donald B. Sommers:

    Yes, sir, he would.

    Earl Warren:

    Yes.

    Donald B. Sommers:

    But the —

    Earl Warren:

    And — and I wondered if he’d ever stood along side of a railroad train going 35 miles an hour within a foot or two of it on a loose footing and had any duties to perform.

    Donald B. Sommers:

    No, sir.

    I have not.

    Earl Warren:

    Pretty dangerous thing.

    Donald B. Sommers:

    It might well be.

    Earl Warren:

    Well, that’s — isn’t that the condition this man was talking about and isn’t that a — isn’t that a question for the jury to determine whether those condition, putting a man in — in those situations did constitute negligence?

    Donald B. Sommers:

    Well, in — not in the manner in which they’re now alleging now, sir.

    You see —

    Earl Warren:

    Well, the evidence indicates to support it, isn’t it?

    Donald B. Sommers:

    Well, I — I’m inclined to disagree with Your Honor, except to this extent.

    Had they come in to Court and said that he was compelled by these concurrent and conflicting duties which changed a normally safe manner and method and place of work into a dangerous or unsafe one, then I think he would and — and submitted a sufficient evidence along the line.

    I — I don’t agree with the — with the construction, but they can be argued that way and — and submitted it on that proposition and relied upon it, then of course we’d have a different case entirely.

    But that’s the precise answer I give to this statement of his that he did not rely on it.

    He’s relying on all up here, but he didn’t rely on it down there.

    He relied on the loosened sloping gravel as — and hopes to show that was a dangerous or not reasonably safe condition.

    And his evidence wasn’t sufficient for it, so the Missouri Court held and I think rightfully — rightfully so.

    He relied on the fact that he was required to work alongside this railroad track where all section men incidentally have to work.

    There’s no two ways about that with a hand torch.

    And yet, he was unable to say how or in what manner this method of setting the weeds enhanced the danger of the fire as such.

    Now, it doesn’t and accordance with what Your Honor has — has been touching on here.

    Actually, the method of work, the method of causing this fire or burning the weeds had actually nothing whatsoever to do with the acts to that such because the fellow left what was pleaded to be the dangerous method of work and ran 34, 35 or 40 yards ahead of it and stood there and in his own words as — as he — as he testified as how the accident happened, he says, “I thought I was far enough ahead of the fire to where I wouldn’t — wouldn’t –“ he says, “At the time I thought I was far enough or away, I was pretty far enough to clear myself of the fire or any danger of the fire.

    And it was time to start to watch these journals.

    So, I sat down.

    I set down — set my torch down on the end of a tie.

    I was standing out on a flat surface, watching a train go by.

    After the train had gotten approximately half or two-thirds of the way, I felt this heat on the side of my face.

    I turned to see what had happened then it was fire right up in my face.

    I threw my left arm over my face, started turning to the west, to the north, backing rapidly away from the fire and that is when I walked in on this culvert and slipped and fell.

    So, you see, actually, the hand torch and what was pleaded against us was of no significance.

    Donald B. Sommers:

    The fact of the matter was it was the fire there.

    Now, it wasn’t in the danger of the fire enhanced by the method of setting a fire which as alleged to be negligence in this particular case.

    He was away from the fire.

    He went completely away from it.

    He stood there and ignored it.

    Presumably, you said he was up there because as Mr. Chief Justice Warren has pointed this other order.

    But he said he did not construe that order to mean he should ignore this fire.

    He stood there.

    He could’ve looked right to his right and seen what was happening to the fire.

    He could have moved across the culvert.

    He knew the culvert was there.

    He knew he was standing next to it.

    He knew that — that he was between the culvert and the fire which he had left.

    And therefore, I submit that if the evidence does not come up to say that the concurrent and conflicting duties caused him to ignore the fire.

    He didn’t so contend by his own words but if it be said that there was a jury proposition involved in that respect then I frankly submit to this Court that that was an element which should have been pleaded and submitted.

    Earl Warren:

    We’ll recess now, Mr. Sommers.