Schulz v. Pennsylvania Railroad Company

PETITIONER:Schulz
RESPONDENT:Pennsylvania Railroad Company
LOCATION:

DOCKET NO.: 282
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Second Circuit

ARGUED: Mar 27, 1956 / Mar 28, 1956
DECIDED: Apr 09, 1956

Facts of the case

Question

  • Oral Argument – March 27, 1956
  • Audio Transcription for Oral Argument – March 27, 1956 in Schulz v. Pennsylvania Railroad Company

    Audio Transcription for Oral Argument – March 28, 1956 in Schulz v. Pennsylvania Railroad Company

    Earl Warren:

    Number 282, Alma Schulz, Administratrix versus the Pennsylvania Railroad.

    Mr. Allen, you may proceed.

    Joseph P. Allen:

    May it please the Court.

    I would like to touch briefly on the testimony with respect to the allegation of insufficient help provided the decedent on the night in question.

    The crew dispatcher upon receiving a telephone call from the decedent that the decedent would be late for work advised the decedent to come to work anyways since if he did not it would leave his trick or shift one-man short.

    Another watch fireman testified that he recalled hearing some work — hearing some word that the middle shift to which the decedent had been assigned was short.

    He testified that the witness, Andre, who was to be watch fireman who relived the decedent testified that it was difficult for one man to take care of four boats to which the decedent admittedly had been assigned.

    He didn’t testify or indicate in any way that it would be more dangerous but he testified that it would be more difficult that he couldn’t properly take care of the boats, and maintaining the fires, and maintaining the water in the boilers and doing the jobs which watch fireman were required to do.

    Admittedly, the decedent, as far as the record is concerned, was the only man on this night assigned to watch four boats.

    However, the witness, Barker, who in the decedent’s absence had taken care of the decedent’s boats, for that period of time, I think from about five o’clock, around five o’clock, was actually taken care of three of his own boats and the four boats to which the decedent had been assigned and the crew dispatcher testified that it was not unusual to assign a watch fireman to watch four boats.

    But the question of whether or not there was sufficient help in — in and of itself is no way connected or can be connected with the death of the decedent and I think that the case on this aspect is governed by the same principles as governed the case of Reynolds against Atlantic Coast Line.

    In that case, the allegation also was that the decedent had not been supplied with sufficient help.

    He was a freight brakeman on a moving train and his job was to cross between cars of a moving train to signal to the engineer at the time when a switching movement was to be — was to be made.

    It was — it was testified — it was — or there was an allegation that the Reynolds case was disposed off on a demurrer made in the complaint, but the allegation was that because the respondent had not supplied the decedent with an additional brakeman, he had to make an additional crossing.

    He had to make one more crossing between cars.

    But the court of Alabama and it was sustained by this Court on a peculiar decision, stated that the fact that he had to make this additional crossing was no more hazardous than the work which he ordinarily performed.

    And what for the intervention of some other force, it could not have caused his fall which was as in this case completely unexplained as to why or how he had fallen from the train and that resulted in — an affirmance in this Court of a dismissal of the complaint.

    Can I ask you a question?

    Joseph P. Allen:

    Yes, sir.

    (Inaudible)

    Joseph P. Allen:

    No, sir, I do not.

    First of all, as I — there were three elements as I understand which the petitioner relies upon.

    I think the evidence with respect to the condition of the — of the ice on the barges is untenable for the simple reason that the weather report clearly established it was 40 degrees.

    Nobody testified that they saw ice.

    The only testimony with respect to the ice was that it was on the front bumping mat, a place in which the decedent could not possibly have been at any time.

    With respect to the lights —

    Earl Warren:

    When the — wasn’t the temperature 40 degrees some hours before this?

    Joseph P. Allen:

    Yes, sir, it was 40 degrees.

    It’s — it’s at page 82 of the record.

    The temperature was 40 degrees at 5 p.m. and then it steadily increased until later in the day — next day which we’re not concerned with — it got, as I remember correctly, up to the middle 50.

    Earl Warren:

    Well, did it — did the record show that it steadily increased throughout the night?

    Joseph P. Allen:

    Yes, sir.

    Earl Warren:

    Or that it was just 50 degrees the next day.

    Joseph P. Allen:

    No, sir.

    The record shows the complete weather report is in the record at page 82 and it shows the hourly temperatures at Battery Place, New York City just across the river and it shows it’s increasing from 40 degrees to 41 to 42 throughout the night.

    Earl Warren:

    Was there normally any difference in temperatures on one side of that river and the other?

    Joseph P. Allen:

    I would say no, sir, but that is not clear in the record.

    It’s — it’s the evidence which was placed in the record by the petitioner here as being obtained in response to an inquiry from the weather bureau, I understand, and they supplied them information, the petitioner placed it in the record.

    It’s only a short distance across the river, sir.

    With respect to the lighting, sir, the — unquestionably is the District Court and the Court of Appeals has pointed out and as the record establishes and as the petitioner’s brief establishes, there is no question but that these floodlights at the outboard into the dock and the inboard in beyond the bulkhead illuminated the entire pier and some portions of — of the — of the tugboats, in addition to which all of the men were given a flashlight.

    Now, that is some dispute as to that testimony as to why.

    Some said that it was necessary when they went below because there were no lights on these boats.

    They were taken out of navigation temporarily for one or two days.

    All the men said that they used it around the boats.

    One of the witnesses, however, who was in the second tier or the fourth tier, I think, it was not, but it was the next tier to the decedent’s boats, said that he — he didn’t have to use his flashlight walking around these boats and that is the closest evidence with respect to what the conditions were at about this time.

    In addition, the assistant road foreman of engines stated that the pier was lit up and this — it was lit up like daylight.

    With respect to the allegation of — of the lights, I might point out that in the petitioner’s brief, he apparently abandons the testimony with respect to the ice and he states at page 26 that he does this because, concededly, the barge or the boats in the dock was not completely covered with ice and therefore it cannot be causally related.

    I think that the same reasoning applies with equal force as the Court of Appeals did that unquestionably since this complete area was not in complete darkness that cannot be causally related with a fall of the decedent.

    I think with respect to the insufficient help, again, without the intervention of some other force, we admit the fact alone, if conceding or for the purposes of the argument that there was insufficient help, that could not contribute to the decedent’s death.

    It didn’t make his work any more hazardous.

    It perhaps made it — if it did made it more difficult, made it more difficult for him to properly tend to the four boats.

    Earl Warren:

    Well, the judge did find that there was negligence, didn’t he?

    But merely didn’t find that there’s any causal connection between the —

    Joseph P. Allen:

    Yes, sir.

    Earl Warren:

    — the negligence and the death.

    Joseph P. Allen:

    Yes, sir.

    His — his words, if I remember exact — correctly, there is some evidence of negligence but not a shred of evidence which would causally connect it with the decedent’s accidental death.

    And the Circuit Court of Appeals then said that the evidence of negligence however is doubtfully sufficient to take it to the jury and in beyond — and in addition to that, there was no evidence which would causally connect it to the decedent’s death.

    There — there is an — an additional point with respect to whether or not the petitioner is proceeding under the right act here which has never been determined in either court below but it is important to the petitioner’s case because they must necessarily establish that the decedent was a seaman under the Jones Act and a member of the crew under the Longshoremen and Harbor Workers’ Act.

    Our position briefly on that is that the decedent was not a member of the crew.

    Joseph P. Allen:

    He was assigned to watch these four tugboats and he, on the next night or the night previous, he could have been assigned to watch any number of other tugboats.

    He didn’t have any permanent connection with any one of these ships.

    He lived ashore, he ate ashore, he had locker facilities ashore.

    He was not on board primarily to aid the navigation.

    His job, I’ve compared them to those of a watchman.

    His job was to take care of the flyers, to take care of the water in the boilers and generally to see if the ships were in condition.

    They were taken out of navigation temporarily and admittedly were to go back after the holiday.

    But I think the fact that he had no permanent connection with any of these ships, he was not on board primarily to aid the navigation, mitigates against the finding that he was a member of the crew.

    In addition to that, I personally find it difficult to visualize how he could be a member of — of a crew of four different ships.

    I have no difficulty with accepting the fact that one man can — can be the crew of a ship, but I have difficulty establishing into my own satisfaction that one man can be a member of four crews or be the crew of four ships.

    (Inaudible)

    Joseph P. Allen:

    In — in that — in that contention, sir, the — the — our position has always been that the proper remedy is the Compensation Act.

    (Inaudible)

    Joseph P. Allen:

    Yes, sir.

    We have — we have maintained that in the District Court.

    We — it wasn’t — it was argued in the briefs in the Court of Appeals but not orally, but we have — or on the record stating that the proper remedy for the petition that they pursue in this case is the Longshoremen and Harbor Workers’ Compensation —

    But I have to assume that the contention be sustained (Inaudible)

    Joseph P. Allen:

    Yes, sir, the — the —

    (Inaudible)

    Joseph P. Allen:

    No, sir.

    The decedent has protected her rights under that statute as I understand that she has filed the necessary papers to protect their interest.

    In summary, I would just like to distinguish briefly the case of Sadler against Pennsylvania Railroad Company and Lavender v. Kurn by stating that in both of those cases, the place of accident was definitely ascertained.

    In — in the Sadler case, the — the decedent was found threading the water between the two barges and the inference, of course, was inescapable that he had fallen from that point right above the water at which point admittedly the lighting was poor.

    Completely different from this case where the place of accident cannot be established by evidence by circumstantial or direct evidence.

    In — the same thing as true of Lavender v. Kurn where the place of accident was established at a mound near the defendant’s right-of-way and the reasonable inference there was that the decedent had been injured at that place by — by the passing train when the nail hooks swung out.

    Those cases —

    Earl Warren:

    Suppose there was some mark to identify where he had fallen, would there be enough evidence to go to the jury in this case?

    Joseph P. Allen:

    I think — then, if there was some mark, if there was a broken rail or some indication from where he fell and it was a point at which there was some darkness, some ice, yes, sir, then, I think it would come within the Sadler against Pennsylvania Railway.

    Earl Warren:

    So the only weakness in this case as you see it, the only fatal weakness is that there is no evidence where — where he went into the water.

    Joseph P. Allen:

    Where or how, yes, sir.

    Earl Warren:

    Yes.

    Joseph P. Allen:

    Yes.

    I think that there’s an inference as to when — the inference as to when being determined by the fact when he was last seen, when he was discovered missing, that narrows it down or maybe a four-hour period.

    But there’s no permissible inference here as to from where he fell or how he fell or as the District Court in Palmer v. Johnson added as to why he fell.

    Thank you very much.

    Nathan Baker:

    May I —

    Earl Warren:

    Mr. Baker.

    Nathan Baker:

    I’ll try to be very brief in my reply.

    First, Chief Justice Warren, you asked a question about the temperature.

    There is direct evidence from Stetson, the assistant foreman in page 24 of the record that at the time of this evening, the temperature was 10 above zero.

    That was his testimony, the assistant foreman.

    That’s outside of the weather reports.

    I submit also that the reference to the darkness at least counsel’s argument has indicated a question of fact and in the question of darkness as direct evidence in addition to the fireman who took the place of this deceased from Mr. Kaufman, a crew dispatcher, called the crew dispatcher.

    On page 14 of the record, he says there were no lights on the boat and that was it was so dark in a boat that he had to use flashlight and a Mr. Stetson, the assistant foreman for the Pennsylvania Railroad on page 21 of the record says that he used the railroad light, the large railroad light in getting about from boat to boat under those circumstances.

    At least it raised a — a disputed question of facts to be submitted to the jury.

    On the question of Johnson versus Palmer upon which the Circuit Court rested its opinion, I think that can be distinguished in the present case because in the Johnson case, there was just the question of the one point of negligence, the absence of the giving of a signal and the Court held that there was nothing to show that he met his death at that time.

    But here, we have darkness proven to be a continuing act at all times while he was on that vessel, so that it’s entirely different so that while that darkness was present as a continuing act, the indication is that it was that negligence that the jury can raise a necessary inference that the negligence was during the period of time when that darkness prevailed when he met his accidental dead.

    I think it can be distinguished from that way.

    I like to state to the Court that the two exhibits mainly the Exhibit P11 in our brief, I set it forth as the Exhibit P1, it should be P11 and by error, we have not left it with the clerk, so it was not made part of record.

    The main purpose of that exhibit shows that in that exhibit, the police record shows that when he was found and taken out of the water, he had a flashlight in his hand, when taken out of the water only underwear and shoes are on, as I’ve been arguing throughout this appeal and I see also a photograph here, Exhibit C,D.

    I was wondering if I can ask the admission of the Court to leave it with the clerk so it would be included in the original record.

    Earl Warren:

    They may be left to the clerk.

    Nathan Baker:

    And I’d be very happy to make a — part of the printed of record if he shows — so desired.

    Earl Warren:

    I think it will not be necessary.

    Nathan Baker:

    Thank you.

    Hugo L. Black:

    Were they exhibits?

    Nathan Baker:

    They are exhibits.

    Hugo L. Black:

    They were exhibits, yes.

    Nathan Baker:

    I’ll leave it with the clerk.

    Thank you.

    Earl Warren:

    Thank you.