Smith v. Butler – Oral Argument – March 28, 1961

Media for Smith v. Butler

Audio Transcription for Oral Argument – March 27, 1961 in Smith v. Butler

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Earl Warren:

— Bert Smith, Petitioner, versus J. Turner Butler et al., Trustees.

Mr. Wahl, you may continue your argument.

Harold B. Wahl:

Mr. Chief Justice, Gentlemen of the Court.

In response to some questions which were raised yesterday afternoon, I would like to point out that if the clause of the plaintiff’s case in the trial of the court below, a motion for a directed verdict was made on the ground —

William J. Brennan, Jr.:

(Inaudible) the second trial?

Harold B. Wahl:

The first trial.

The second trial, of course, was merely a profit.

A — there are number of motions were made, but included in them were a motion for directed verdict on the ground that no actionable negligence under the Federal Employers’ Liability Act had been proved.

There was another motion to strike all testimony as to the right to give the test to Smith.

There was a third motion to strike those allegations from the complaint, which dealt with the right to give Smith the test.

So you can see that all the fundamental issues in the case were properly raised by motion.

At the close of plaintiff’s case, the judge took those motions under advisement.

The motions were renewed at the end of all of the testimony, and then they were brought up again after the verdict in the form of a motion for judgment, notwithstanding the verdict.

They were brought up for the fourth time in a motion for new trial.

So certainly, if the trial judge had ample opportunity to do what we think he should have done.

And when this got to the appellate court, the appellate court pointed out that the trial court had had ample opportunity to consider all these questions and they reversed it.

And remanded the case for a new trial for doing what they said he should have done, which was to give a new trial limited to the last six allegations of negligence in the complaint.

I hope I pointed out —

John M. Harlan II:

Could I ask you to —

Harold B. Wahl:

Yes, sir.

John M. Harlan II:

— explain because I don’t understand it yet, what the basis of your Supreme Court’s opinion in dismissing the two — the three —

Harold B. Wahl:

Was — that they —

John M. Harlan II:

— the two causes of action.

Harold B. Wahl:

They didn’t allege —

John M. Harlan II:

I can’t understand it.

Harold B. Wahl:

— the — the — it was our District Court of Appeal and the certiorari was denied —

John M. Harlan II:

Yes, yes.

Harold B. Wahl:

— by our Supreme Court.

John M. Harlan II:

Yes.

Harold B. Wahl:

The Court held that allegations A and B of the complaint did not allege actionable negligence under the Federal Employers’ Liability Act.

John M. Harlan II:

You mean as a matter of state pleading or as —

Harold B. Wahl:

Well, I think that’s probably has something to do with it because if you look further on down, you’ll find in allegations C through H.

There is alleged, the fact that he wasn’t given a place — safe place to work.

There’s alleged that the test wasn’t conducted properly, wasn’t properly supervised and all that sort of thing.

They held that as a matter of law, the mere right to give a test was not negligence or the deprivation of that right was not negligence under the Federal Employers’ Liability Act because everybody has conceded, including counsel for the plaintiff that this Board, that the railroad had the right to give a reasonable test.

And the complaint didn’t say that the test was not reasonable.

John M. Harlan II:

What — what comment have you got to the suggestion that the Supreme Court’s opinion can be read — could be read or the appellate court’s opinion could be read, is saying that although there was a sufficient pleading under Florida law of negligence in the requirement of the test, nevertheless and because of the Railway Labor Act, that kind of negligence, so they’re not actionable under the FELA.

Harold B. Wahl:

All I can say to that is that there are six allegations of the complaint, which clearly give him the cause of action for the thing he wants.

John M. Harlan II:

But you (Voice Overlap) —

Harold B. Wahl:

And I don’t think it’s up to this Court or us, to try to read in to some mirky language in Sections A and B of the complaint or in the opinion and try to figure out that it means something else.

All this Court is concerned with is whether the right result was reached.

And the right result was reached because he was remanded for a trial on those issues which alleged negligence under the Federal Employers’ Liability Act and where he was entitled to a trial.

And he was only deprived to the trial on those issues which did not constitute negligence under the federal act.

Now, Mr. Justice Harlan, that’s about all I can say about it —

John M. Harlan II:

You would —

Harold B. Wahl:

— on that particular aspect.

John M. Harlan II:

You would agree that the opinion of the appellate court’s a little mirky.

Harold B. Wahl:

I am afraid it is, but after all when you win a case and you win it on the right basis, if the court uses some dicta or some mirky language, you don’t go back and say, “Judge, let’s change this around a little, because he may change it and end up ruling for (Inaudible).”

John M. Harlan II:

I sympathize to that.

Harold B. Wahl:

Now, let me impress upon the Court if I may.

The factual context in which the appellate court held that this motion for — that this motion should’ve been granted and that there wasn’t a cause of action stated as to the right to give the test.

In the first place, these are the undisputed facts.

Now, these are the facts that were before the Court at the end of the plaintiff’s case and this is what the appellate court was dealing with.

We had mystified by fire Smith, the trainman, who had reduced from 327 to slightly under 300 pounds, but he was still a pretty hefty customer.

He was in his early 60s and according to the testimony of one of the witnesses, his condition was such that he couldn’t even step up from the ground and get on the lower step to get into the coach.

He had to get a stool or something and stand on that and then get into the coach.

Now, the trainman’s chief job as everybody admits, is to protect the rail of the train in case of emergency.

Fortunately, only too rarely, do we have a rear-end collision, but rear-end collisions or terrible vengeance.

And when there is some breakdown in the railroad mechanism and the rear of the train needs protection, that’s what this man was on there for, to go back on sufficient distance to flag or put a fusee or put a torpedo.

Now, imagine having a man of those dimensions and those qualifications charged with that dreaded responsibility on a passenger train, loaded with people.

Harold B. Wahl:

Now, there’s not neither is there any question that it takes about a mile for passenger train to stop at such a — in such a manner, as not to endanger the passengers.

There’s no dispute about that when he’s making the maximum speed which on the Florida East Coast, is 79 miles an hour.

Now, we can stop him sooner than that.

We stop one sooner than that a few weeks ago to avoid hitting a truck and we put 92 passengers in the hospital.

Now, it’s to provide for the safety of the passengers that the train has to be stopped in a reasonable manner and that takes a mile.

There’s no dispute about that.

Now, Smith himself testified that on prior occasions, he had gone back a mile or more to protect the train under circumstances where it was his duty to go back and protect.

On top of that, his counsel, my good friend, Bill Frates adverted to that fact in his argument before the jury.

And on top of that, the appellate court opinion, whatever else it may have wrong with it, is might good on this point, it also calls attention to the fact that he had to go back a mile.

Now, under those circumstances, with the man on the train almost entirely for the purpose of protecting of the railroad in the event of a mechanical failure or something happening which required the train to be protected.

Hugo L. Black:

(Inaudible)

Harold B. Wahl:

What would be a reasonable test as to whether the man was able to perform his duties?

Can you think of any of the test on earth other than seeing if he could walk him off and that is the terrible, unrighteous, awful test that they are complaining about here.

We simply told Mr. Smith that because of your physical condition, he doesn’t look to us like you’re able to perform your duties.

And Smith said, “Well, I’ve just been up the hospital.

The doctor says I’m in good shape.”

So we said, “Well, we still think that you order retirement.”

He says, “No, I won’t keep on.”

So we said, “Alright, then you take a test.”

Smith said, “He wasn’t going to retire, he was going to take that test.”

So, we put him out on a mile of the railroad in Dave County, the same county where Miami is, we didn’t take him off to the jungle somewhere, as people of entity.

We had to get him off where there weren’t any crossings or anything like that, whether there’s straight mile of track.

And who was started out on the test?

Five people, two people from the railroad, Smith and he didn’t bring one union chairman with him.

He brought two, so five of them started out.

The two railroad people walked long and unleashing pace, they made the mile in 19 minutes.

The two union chairmen, tried to be as good they could to their fat friend and slowed it down as much as possible, but they made the mile in 23 minutes.

What happened to — just to file the fact, he never did make it [Laughter].

It took him 32 minutes to make 3000 feet and he couldn’t go any further, as one of his own human chairman testified, he failed with utter exhaustion.

Charles E. Whittaker:

He went 3000 feet?

Harold B. Wahl:

3000 feet, in 32 minutes.

Now, suppose you were a passenger on that train with your wife and your children and there were some mechanical failure, where about that trainman had to go back and protect you from another approaching train, how would you like your lives to be in the hands of a man who couldn’t even walk a mile?

And you could only make 3000 feet in 32 minutes and it was in such shape at the end of that time, that he had to be taken to the hospital.

Is that an unreasonable test, gentlemen of the Court?

You can see why.

My friend, Mr. Frates, wanted to try the case on the basis of bias and prejudice as the appellate court said he did, rather than get down to the merits of this case and you can see why it was reversed.

Charles E. Whittaker:

Do you understand, if I may ask, the first two assignments of negligence under paragraph (5) of the complaint record 2, to charge negligence in the manner of conducting (Voice Overlap) —

Harold B. Wahl:

No, sir.

Charles E. Whittaker:

— or negligence in requiring any test at all.

Harold B. Wahl:

Right, your last comment is the right one.

There’s no torturous reading of that language can — that can make A and B say that there was a test given in a negligent manner.

He doesn’t say that.

He doesn’t say we gave an improper test.

Charles E. Whittaker:

Well, he doesn’t say in those assignments.

He does in later assignments.

Harold B. Wahl:

He’s — does later on.

And the Court said that as to those later ones and I call your petition particularly the (c), (g) and (h), he had a right to a jury trial, but he said, he didn’t want a right to a jury the trial.

Charles E. Whittaker:

He did what?

He didn’t want it.

Harold B. Wahl:

He said when it came back the second time and this — the appellate court had said, “You go back and try it as to your allegation (c) through (h).”

His attorney, Mr. Frates, told the Court, “We don’t want the trial on those issues.

We’re going to stand on our right on (c), on (a) and (b) and we abandoned all the remaining six allegations.”

Tom C. Clark:

Where is that — where is that in the record?

Harold B. Wahl:

Well, there’s no dispute about it.

I can dig it out for you, but Mr. Frates will freely concede that he abandoned the last six allegations and remain — rested on the first two.

There isn’t just no dispute about that if you want me to —

Tom C. Clark:

By the Court —

John M. Harlan II:

Page 337.

Harold B. Wahl:

Thank you, sir.

Tom C. Clark:

By the Court, they call it testimony if they construed the first two in the manner — in the manner in which you said to be it.

Harold B. Wahl:

Well, Judge, you see, the — the Court that took all the testimony was the Court the first time that gotten reversed.

They did all that before they were reversed.

William J. Brennan, Jr.:

But you didn’t object as I recall it.

I haven’t read all this (Voice Overlap) —

Harold B. Wahl:

Well, all I can say is you instead —

William J. Brennan, Jr.:

(Voice Overlap) —

Harold B. Wahl:

— I didn’t try the case, but —

William J. Brennan, Jr.:

Just let me ask you.

Harold B. Wahl:

Yes, sir.

William J. Brennan, Jr.:

I don’t find in — anything from (c) to (h) an allegation in the form that Mr. Justice Whittaker put it to you, namely, an allegation that negligence in the manner of conducting (Inaudible).

Harold B. Wahl:

Well, Judge, I can only read to you, “In negligently failing to provide the plaintiff with proper equipment and safeguards in performance of his duties and in the participation in such a field test.”

William J. Brennan, Jr.:

But that doesn’t say anything about negligence in the manner of conducting it necessarily, does it?

Harold B. Wahl:

Well, in performing —

William J. Brennan, Jr.:

Unlike the other things besides that, but in any event, what I’m trying to get to is why isn’t this evidence taken or pages of it, without objection, that evidence which went to the manner of conducting a test?

Harold B. Wahl:

All I can say is that at the end of the plaintiff’s case, we move to strike all testimony on the question of the right to give the test and move to strike allegations (a) and (b) from the complaint, which on the Board knows is sufficient.

William J. Brennan, Jr.:

Which you did — well, I — I thought — I thought you made the motion for direct –direction of verdict.

Harold B. Wahl:

We did that too.

William J. Brennan, Jr.:

Initially on the ground of its insufficiency.

Harold B. Wahl:

That’s right.

William J. Brennan, Jr.:

But when it was introduced, that is the evidence going to the manner in which the test was conducted.

Am I correct that there was no objection on the part of defense counsel to its introduction?

Harold B. Wahl:

Not at that time, no, sir.

At the end of the case which under Florida law was sufficient, those —

Felix Frankfurter:

Mr. Wahl.

Harold B. Wahl:

Yes, Mr. Justice —

Felix Frankfurter:

Justice Whittaker asked you whether you could read allegations (a) and (b) under paragraph (5) as alleging negligence in regard to the manner in which the test was pursued.

Harold B. Wahl:

I said no, just as emphatically as I know how to say it —

Felix Frankfurter:

I —

Harold B. Wahl:

— Mr. Justice.

Felix Frankfurter:

I heard you that’s why I’m asking the question —

Harold B. Wahl:

Yes, sir.

Felix Frankfurter:

— I’m about to ask.

You said you couldn’t read it that way.

That isn’t the question whether you could.

Harold B. Wahl:

You can either.

Felix Frankfurter:

The question that is in — in point either Mr. Wahl.

The question is whether your Court of Appeals read it that way —

Harold B. Wahl:

No, sir.

Felix Frankfurter:

— or should have read it that way or could’ve read it that way under the Federal Employers’ Liability Act (Voice Overlap) —

Harold B. Wahl:

I say its contortionist attempt to read language that isn’t there, to attempt to put any such construction in those paragraphs particularly when the later paragraphs spell out that same proposition.

Felix Frankfurter:

May I — may I repeat my question?

Harold B. Wahl:

Yes, sir.

Felix Frankfurter:

It seems to be the question is whether what your Court of Appeals did, not what you think it could’ve done or shouldn’t have done or wasn’t allowed to do.

Either in fact, it construed (a) or (b) as going to the negligent manner of conducting the test or to that Court, not of any us including you, whether that Court construed it in the first place, as not going to the manner of the test, but to giving any test.

And secondly, whether that was an allowable construction by that Court, the state court of the federal act, those seem to me to be the crucial question.

Harold B. Wahl:

Mr. Justice Frankfurter, all I can say is what I have said before, is that I don’t think that Court did or that Court could read into that language, any complaint as to the manner in which the test was conducted.

Felix Frankfurter:

And by saying it, that Court could not, you mean, that no construction placed by this Court under their proper standing of the Federal Employers’ Liability Act, could so construe that allegation?

Harold B. Wahl:

Yes, sir.

Felix Frankfurter:

You have to go as far as that.

Harold B. Wahl:

Yes, sir.

Felix Frankfurter:

Because —

Harold B. Wahl:

While whether I have to go that far or not —

Felix Frankfurter:

I think you —

Harold B. Wahl:

— but in answer to your question, I answered in the affirmative.

Felix Frankfurter:

I think you do if I may so because a state court cannot give an allegation in a Federal Employers’ Liability complaint, such a construction as to be unreasonable or unfair and thereby, frustrate the Act, —

Harold B. Wahl:

Well —

Felix Frankfurter:

— so that what the — the construction by a state court of a complaint under the Federal Employers’ Liability Act is not conclusive upon this Court, if by such construction whether willful or not and I’m not suggesting willfulness, if it gives a strain construction to an allegation on the Federal Employers’ Liability Act by that process, it can’t repeat the Act.

Harold B. Wahl:

Mr. Justice Frankfurter that all sounds good, but if you’ll just read paragraph (3) (c) through (h) of the same paragraph, you’ll see that he properly alleged the things that are involved here and there wasn’t any necessity to try to get strain constructions of some language up above, when it’s clearly stated down below.

Felix Frankfurter:

That’s another way of saying that your Court of Appeals number one, construed one and two merely to charge a cause of action because of submitting, compelling the man to be submitted —

Harold B. Wahl:

Right.

Felix Frankfurter:

— to a test.

Harold B. Wahl:

Right.

Felix Frankfurter:

And two, that as a perfectly allowable, indeed you say a required construction with those —

Harold B. Wahl:

Yes.

Felix Frankfurter:

— allegations.

Harold B. Wahl:

Certainly allowed —

Felix Frankfurter:

Alright.

Harold B. Wahl:

— certainly.

Now, as to the — there’s been a lot of talk here as to the kind of test and that this be able to something unusual and different.

The record is replete with the fact that tests were given everyday on the railroad as to fitness and efficiency.

And the man’s own union chairman, one of those two fellows that took the 23 minutes to counsel off a little way, testified that the only kind of test that you could give a man under these circumstances was the kind of test that he was given.

That’s at pages or — or 114, 115, 126 to 128.

Our position is —

Felix Frankfurter:

Why do you make — may I break in again?

Harold B. Wahl:

Yes, sir, Mr. Justice Frankfurter.

Felix Frankfurter:

What do you make of the statement of counsel for the plaintiff?

Harold B. Wahl:

Sir?

Felix Frankfurter:

What do you make of the statement by counsel for the plaintiff at the first trial on page 277?

“Now, gentlemen, there was never — there was never any other test given to anybody on this railroad like the one they gave Bert Smith.”

Harold B. Wahl:

Well, what he’s —

Felix Frankfurter:

What is your comment on that?

Harold B. Wahl:

My comment on that was that he tried to pick out that we hadn’t had before of Mr. Five by Five and hadn’t — had to take him out and see whether or not, how long it took him to walk a mile and whether he could walk a mile or not.

This particular of a trainman to do this particular thing, that’s correct, but we had had test everyday —

Felix Frankfurter:

What — the same kind of walking test for a mile?

Harold B. Wahl:

Yes, we had not had that occasion to do it before, because we hadn’t had it.

He’s going to appreciate, Mr. Justice Frankfurter, particularly if you ride railroads that it couldn’t be a very happy situation —

Felix Frankfurter:

And I almost exclusively (Voice Overlap) —

Harold B. Wahl:

— or I’d say, it wouldn’t be a very happy situation.

The very — many of our employees couldn’t walk a mile when the — their whole duty involved walking a mile to protect the rail of the train.

As a matter of fact, they had to walk two hours.

Harold B. Wahl:

They got to walk a mile down and a mile back.

But is —

Felix Frankfurter:

What kind of testing had you given to other people?

Harold B. Wahl:

All sorts of tests.

Felix Frankfurter:

Well, does the record show that?

Harold B. Wahl:

Its — it indicates generally that test were given everyday as to the efficiency and ability of the men to perform their jobs.

I don’t recall there was any detail as to the kind of test.

Charles E. Whittaker:

Mr. Wahl —

Harold B. Wahl:

Yes, Mr. Justice Whittaker.

Charles E. Whittaker:

— I wonder if it isn’t possible or necessary to observe that the counsel for the plaintiff took the view what the second trial that counts — that assignments one and two of paragraph (5) tried something different than the remainder when he said, they — record 337.

In other words, our whole position in this case is that requiring this fellow to take this test and conduct this thing was the negligence in the case and the violation of the Federal Employees’ Liability Act.

Harold B. Wahl:

No question about it.

He realized he couldn’t get in anywhere other ways.

So his whole theory was that it was negligence per se under the Federal Employers’ Liability Act to give this man a test.

That was the theory on which he tried it and he was — the lower court was reversed for permitting to try it on that theory, because as he conceded yesterday, before the bar of this Court.

Of course, the railroad has gotten the right to give reasonable efficiency test.

Charles E. Whittaker:

All I’m saying — I’m suggesting is — is not a matter of construction by plaintiff’s counsel that assignments (a) and (b) were different than the others.

Harold B. Wahl:

Oh I — I don’t think there’s any doubt with what I don’t agree with Frates in his construction, thus Mr. Frates told him.

That’s not the Court and that’s the way he did construe it.

He’s argued all along that he had a right to try the case on the theory that it was negligence per se when they gave him a test.

Earl Warren:

Mr. Wahl, how — how long had this man been carrying all of this excess weight to the —

Harold B. Wahl:

For a considerable period of time.

Earl Warren:

What do you mean by considerable period of time?

Harold B. Wahl:

Many years.

Earl Warren:

Any — any number of years that you have in mind?

Harold B. Wahl:

Oh, I’d say a considerable number of 15, 20, 25 years.

In fact, the doctor said it was equivalent to carrying 125 pounds around on his back.

Earl Warren:

And — and he had apparently taken off considerable weight at this particular time, so he’d been much heavier before that?

Harold B. Wahl:

No question about that, Your Honor.

Earl Warren:

But he ever has been given a test of this kind in all those 25 years?

Harold B. Wahl:

No, he had not.

What had —

Earl Warren:

How — what does the record show —

Harold B. Wahl:

The record —

Earl Warren:

— anything about why — why it was done at this particular time?

Harold B. Wahl:

Well, I think what happened was that a new man was put in — a new train master was put in charge of this division.

And regardless to the errors that his predecessors have committed, when he came along and saw Mr. Five by Five couldn’t even stand up and get on the lower step of the coach without put — put under it.

He figured that the man could not safely protect the rail of the train and that’s what it brought this up.

Earl Warren:

Is that in the record?

Harold B. Wahl:

Yes, sir.

Earl Warren:

That — that’s —

Harold B. Wahl:

No question about that.

That the new train master who came in, the new man incidentally, Mr. Smith, just gotten out of the hospital and come back.

He’d have a whole lot other trouble.

And he came back from the hospital claiming it was alright to go back to work and had a certificate from the doctor.

But the train master after he came back from the hospital saw him walking around and he just was afraid to entrust the lives of his passengers to that man without being sure that the man could perform his duties and protect the rail of the train.

I figure that question was going to come up but just because they made errors in the past, can maybe to risk passengers’ lives by having a trainman who couldn’t protect the rear of the train properly.

That isn’t going to be in the defense.

If some — if some train plows into rear of another and a whole lot of people are killed and hurt, regardless of our mistakes in the past, it’s our duty to have safety at the present time.

John M. Harlan II:

What page is that on the jury that you referred to —

Harold B. Wahl:

About Mr. —

John M. Harlan II:

— the Chief Justice, yes.

But you told the Chief Justice as to the reason for giving —

Harold B. Wahl:

Well, I have to hunt through here, but I’ll be glad to get it and give it to the Court.

There’s no dispute about the fact that Clark was a new train master and that when Clark when came on the job, he apparently tried the remedy some of the defects of his predecessors.

Hugo L. Black:

Was there any new evidence offered at the second trial of the —

Harold B. Wahl:

No, sir.

Hugo L. Black:

— submitted on —

Harold B. Wahl:

Mr. —

Hugo L. Black:

— the old evidence.

Hugo L. Black:

That’s (Voice Overlap) —

Harold B. Wahl:

In fact, I’m glad you asked that question because that gives me a chance to get him out of the point that the red light kept —

Earl Warren:

Well just —

Harold B. Wahl:

— me off.

Earl Warren:

— just take this point.

Harold B. Wahl:

Yes, sir, but I mean it to answer it, I have to do that.

At the second trial, Mr. Frates attempted to proffer, although the Supreme Court had limited the trial to the last six issues.

All of the testimony on the first trial which embraced the last six and the first two issues, which of course was improper.

And no additional testimony was proffered.

Now at the second trial, he did get in an additional allegation as to the railroad knowing this man was sick and couldn’t he put him on, but he abandoned that allegation on appeal.

Does that answer your question Mr. Justice Black?

No testimony was put on at the second trial other than to proffer.

Hugo L. Black:

All I ask — all I ask was, if all this evidence that you have in here, evidence that you give on the first trial —

Harold B. Wahl:

Right.

Hugo L. Black:

— they reversed the case.

Harold B. Wahl:

Yes, sir.

And no new testimony of any kind was put on the second trial.

William S. Frates:

May it please the Court, so little time and if you’ll pardon me, I’ll talk rapidly.

Just —

Felix Frankfurter:

Would you mind just — would you mind just answering one question, which I think this case a little being answered very explicitly.

Mr. Wahl said that at the second trial, you abandoned then — the last six allegations.

Is that true or not true according to the record?

William S. Frates:

Your Honor, we abandoned six allegations because the Court and I would like to read that.

That is one of the things I want to point it out, held that those allegations and the railroad counsel agreed and I agreed, dealt with only with a reasonable safe place to work.

The other two dealt with the giving up the test.

The Court held under the opinion that I’m reading from page 332 that this was a pretrial part of the proceedings.

That on retrial, we are not going to be able to go into the propriety or impropriety of giving this particular test, although I did it, the original trial admit evidence on that fact and I felt that it was a question.

However, I have been reversed.

Felix Frankfurter:

That’s a very different thing from saying that you were in the compulsion, in the first place, your answer that you did abandon — that those six allegations from (c) through (a) — or not before the Court in the second trial, is that right?

William S. Frates:

That is right, sir.

Felix Frankfurter:

Now, secondly, those allegations from (c) to (h) do not merely deal with the safe place, (g) — certainly (g) was very different things and merely a safe place.

In other words, (c) to (h) cannot repetitive.

William S. Frates:

Your Honor, the Court held and may I read from 341, “But I would sure entered an order and this was discussing all of the remaining allegations on the pretrial before they were abandoned which was later on.”

And here’s what the appellate court said discussing those items and I refer to page — page 340 and 341 in a discussion, a pretrial discussion, in trying to determine the issues in this case, over here on 340, “The remaining allegations were discussed.”

Then the Court said, “But I would sure enter my order that I would sustain an objection to any testimony offered or proffered, which had to do with the grievance of the employed as the propriety of the right of being given this particular test on the basis of this opinion.”

The evidence —

Felix Frankfurter:

Well, the propriety of giving a test is a very different thing from the safe conditions under which a test is given.

William S. Frates:

Your Honors, the propriety goes to the actual method and manner, as I read here yesterday.

The Court said and the trial court said, “I refute —

Felix Frankfurter:

Then you ought to be — then you ought to have gone, if I may say so, to your Supreme Court and to this Court because the Court improperly shut you off from making a case which you alleged.

William S. Frates:

Your Honor, we relied — we relied on the fact that this Court, the lower court and the appellate court said that all of the evidence relative to the manner and method of this case — test was not admissible.

Felix Frankfurter:

Where did it say the manner and method?

Where did it say the method?

William S. Frates:

Your Honor, it said the propriety —

Felix Frankfurter:

Well, the propriety means that isn’t proper, not that the conditions, under which it was done, were not proper.

William S. Frates:

Your Honor —

Felix Frankfurter:

They’re very different things.

Hugo L. Black:

I understood you to say that you said the propriety of this particular test.

William S. Frates:

Thank you, Justice Black.

That was the question, the propriety whether or not this was a proper — proper test.

Felix Frankfurter:

In other words, that everything that you alleged from (c) to (h), he said he wouldn’t let you make proof of, but you could make proof of under (a) and (b).

Is that what you’re saying?

William S. Frates:

Yes, sir, as far as —

Felix Frankfurter:

Where is that phrase, that you could make proof of that what you sought to prove from (c) through (h) by proving it under (a) and (b)?

Where is that in the record?

William S. Frates:

No, sir.

It says that the other — the other elements in the record show that the Court said that those are reasonable safe place to work.

We still stand on the fact of the negligent given test, which was a jury issue and the Court said that all the evidence in relation to that test, sir, was inadmissible and that’s what the trial court held.

We could not put an isle of evidence about this test in — before under any of this counsel and —

Felix Frankfurter:

Did you —

William S. Frates:

— they ruled that in the first case.

Felix Frankfurter:

Did you make any of objections to a ruling which you — I understand you to say was made, that you couldn’t prove the allegation from (c) through (h)?

Did you object to that ruling that the Court wouldn’t let you make proof from (c) through (h)?

William S. Frates:

No, sir.

No, sir, because the Court had said that they wouldn’t permit any evidence.

Felix Frankfurter:

Yes, but you can object when the Court denies you something and you think the denial is wrong, the normal rudimental thing is to object to a wrong ruling not to yield to it.

William S. Frates:

Yes, sir.

But I also did yield to one and two which said that the issue of this test was not a triable issue and we rely on that and didn’t yield on — on that issue.

And that is the whole basis of this case.

There has never been any contention by the railroad until here that the manner and the method of giving this test, their whole brief, their question say, “This was a proper test.”

We say it was not a proper test, that this was a jury issue as to whether an improper, an unreasonable test became a — a jury question under the FELA.

John M. Harlan II:

What you’re saying in effect is that it made allocation negligence for the railroad to give any test however appropriate.

This test may have been in normal circumstances to a man who weighed X number of pounds and by whom they had this — has knowledge, is that the theory of your case?

William S. Frates:

That’s one theory.

We also say that there is an issue as to whether or not this test was a reasonable test under the circumstances.

And that was the jury, whether it was a proper test, whether it had any relations to — to his duty, whether that this was a test designed to get rid of him.

All of which evidence was adduced at the trial in which the jury believed.

And the jury believed that there was no requirement to go back a miles.

That was an issue.

Charles E. Whittaker:

Well, Mr. Frates, are those not the assignments that you abandoned?

William S. Frates:

No, sir.

The only assignment that has been abandoned, the only thing that we could’ve shown is shown in the record by the Court, was to show that the erring where this man walks was a reasonably safe place under the circumstances.

That’s the only fact that we could have proven as shown in the pretrial evidence and the rulings of the Court.

That was the only evidence we could and that wasn’t the major issue in the case.

Thank you, gentlemen.