Thomson v. Texas & Pacific Railway Co.

PETITIONER:Ruby Neil Thomson
RESPONDENT:Taxas & Pacific Railway Company
LOCATION:Congress

DOCKET NO.: 321
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 353 US 926 (1957)
ARGUED: Apr 02, 1957
DECIDED: Apr 08, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – April 02, 1957 in Thomson v. Texas & Pacific Railway Co.

Earl Warren:

Number 321, Ruby Nell Thomson versus Texas and Pacific Railway Company.

Ms. Tarpley.

Beverly Tarpley:

Mr. Chief Justice, may it please the Court.

This is a case arising under the Federal Employers’ Liability Act, a suit involving an injured workman on a railroad.

The employee had been hired several months before this accident to perform the duties of an agent-operator on the respondent’s railroad lines.

After a few months of training or a short period of training, she was employed first of all on what was — what was called the extra board.

That meant that she went to various stations up and down the line, filling in for a day or here and there while employees were on vacation or on sick leave.

After a period of several months of doing this kind of work, she bid in and received by a reason of her seniority a regular job as agent and operator on the station at Monahans, Texas, a station in far west Texas.

There on her testimony, it was her job to perform various duties of the clerical nature to take care of train orders and handling tickets and things of that nature.

When she first went to this job — pardon me, a Mexican laborer, also an employee of the respondent railroad was engaged in handling the mail which came in on a regular passenger train, which passed — passed through on the petitioner’s shift.

Now, handling the mail meant loading up a baggage cart, that sort of thing, follow these individual bags and mail which had been prepared by the postal employees and lock in the postal room, pulling that cart out to the waiting train, climbing up on the cart and picking up the bags and mail individually and tossing them into the Post Office cart, receiving incoming bags of mail, getting down and pulling the cart back into the waiting mail room.

Now, as I have said, when petitioner first went to work on this particular station, a Mexican laborer, who was a witness in the trial of this case, was handling this mail and he continued to handle it up until two or three days before the petitioner’s injury.

At that time, she was told by her immediate superior, who was the witness, Higginbotham that she was to handle the mail, she was to handle it alone and with no assistance.

There’s no testimony in the record that the handling of the mail up to this time had been improper, that the train could been delayed or that the Mexican laborer was no longer available.

Simply the very statement that her superior requested that she handle the mail.

She did so for two or three days and on about the third day, on the day of the accident, she climbed down from the mail cart after handling several bags of mail weighing 50 to 75 pounds each, felt a sudden catch in her back.

Shortly after that time, she was taken into the hospital and received various treatment over a long period of time.

This case was tried in the Abilene Division of the Northern District of Texas and a jury verdict was returned for the petitioner.

The case was reversed on its merits by the Fifth Circuit and brought here by certiorari.

Now, it is our contention that the Fifth Circuit reversed this case or reversed the jury verdict on two particular grounds.

Both of those grounds are arguments which had been advanced before this Court in numerous decisions arising under this Act and have on each instance been rejected by this Court.

The first of those arguments, one advanced by the railroad, was that this woman was engaged in doing only the usual and customary duties of her employment at the time of the accident or in other words, the whole idea of non-negligence.

Now, we feel that the Fifth Circuit improperly analyzed the record and in arriving at their decision that this was usual and customary and therefore no negligence, that they rely on the very argument, as I have said which have previously been advanced before this Court and rejected.

The testimony is clear that it was not usual and customary as to this particular employee.

The allegations of the petitioner’s complaint in the trial court were failure to furnish sufficient help, failure to furnish a safe place to work.

And the jury was charged on that basis and on that basis, on the basis of the testimony of petitioner and the testimony of these other witnesses returned a verdict that she had been furnished improper help.

Now, the first of these cases arising before this Court after the 1939 amendment to the Act, which was of course the amendment that abolished assumption of risk, was the Tiller case in which this Court set forth a very exhaustive opinion and set forth a very complete summary of the intent of Congress and the responsibilities of the employer under this Act.

The lower court in the Tiller case had advanced the same theory that the Congress by abolishing the defense of assumption of risk had not meant to increase the employer’s responsibility towards his employee.

This Court said that that was just another way of saying no negligence and assumption of risk.

In other words, the employer could not simply, by saying this is a usual and customary duty, force the employee to take on whatever risk were involved in performing that job.

Beverly Tarpley:

And as we said, this was first advanced by this Court in the Tiller case, it has been advanced by this Court down through the years in the Stone case, Blair case, all of which cases had been cited by petitioner and reaffirmed in fact by this Court in three opinions handed down by this Court only last month, the Rogers case and the other cases following.

The second thing that the Fifth Circuit mentioned was a failure to protest sufficiently hard on the part of the employee.

The record showed that several days before this accident occurred, the petitioner’s immediate superior told her that she had to handle the mail and had to do it alone.

The petitioner then testified that she had previously been instructed by someone who was hired in the railroad line of organization that it had become the railroad’s policy to encourage its women employees to dress in a manner becoming a woman and that this made it impossible for them to climb up on carts and do manual labor.She told her superior that and he said, “You’re hired out to do a man’s job and that’s what I intend for you to do.”

Earl Warren:

What was that last that he said?

I — I didn’t quite get that.

Beverly Tarpley:

I beg your pardon, sir?

Earl Warren:

I didn’t get your last statement that was made.

Beverly Tarpley:

The — her immediate superior there on the job, the witness Higginbotham, told her in response to her protest about the fact that she could not do this job while wearing the clothing she’d been requested to wear was, “You have hired out to do a man’s job and now those are the duties I see fit for you to do.”

Earl Warren:

Now, before that, what had been told to her in that regard by a higher superior, did you say?

Beverly Tarpley:

Yes, sir.

She had been requested to wear skirts and hose and normal female attire, and such attire made it impossible for her to climb up on mail carts and do the kind of manual labor that her superior insisted.

And during that period of time, the laborer, who was an employee of the railroad, had been doing this work.

So at that point, on a direct order from her superior, she began doing the work and after performing it only two or three times suffered an injury.

Now, the Fifth Circuit held that that was a failure to protest and said that by reason of her failure to protest, she could not recover under the circumstances.

Now, it has been suggested — pardon me, it has been suggested by the petitioner and we would reiterate here that the conduct of the employee is not the test set forth by Congress or by this Court in its interpretation of the law under — arising under the statute, that it is the conduct of the employer which is the sole criteria for deciding whether or not there is liability.

I believe that this Court in its case of Rogers versus Missouri Pacific, one of the latest cases deciding, has said that the only ground of inquiry for an appellate court is whether or not the negligence of the employer contributed in the slightest degree to the injury of the employee.

And by reason of that statement and it is a statement which this Court has made many times before, we feel that the Fifth Circuit simply did not follow the interpretation of the law laid down by this Court previously.

They — we feel that they ignored the sense of this Court’s opinions in — and put improper emphasis on her conduct.

Under those circumstances, we feel that the decision of the trial court ought to be affirmed.

Earl Warren:

Mr. Look.

J. B. Look:

Mr. Chief Justice, may it please the Court.

Now, here’s why we are up here.

The petitioner pled in her pleading that that morning she noticed there was an unusual heavy amount of mail and then she told her superior about it but he ordered her to go ahead.

The proof did not show that.

There’s absolutely no evidence as to that.

Now, here’s what happens on these jobs.

She had been working for some 15 months as an agent-operator.

She testified it was normally one of the regular duties of an agent-operator to handle the mail, that she knew it was the duty of the agent-operator at Monahans, where she asked the railroad to send her to handle the mail.

Now then, what happens is this, the Post Office employees sacked the mail, not the railroad.

J. B. Look:

They determine how much it will be in a sack and how many sacks there will be and they load them on to these carts.

And then a railroad employee takes the cart and takes the mail off of the truck, which is an ordinary kind of cart that the railway express and railroads all use, and sets them inside the — the Railway Post Office car and takes the rest of them all.

Of course, the Railroad Post Office car, their employees in there are United States employees, United States Government employees and not railroad employees.

Earl Warren:

How heavy do these bags get?

J. B. Look:

On this occasion, she stated the bags were — some of them 50 to 75 pounds on this particular occasion.

Now, remember —

Earl Warren:

Do they get heavier than that on — on occasions?

J. B. Look:

I — I don’t know, Your Honor.

The record is completely silent as to that.

I — I don’t know how heavy they might get.

I took it that this was “unusually heavy this morning” is the impression that you get from reading the record on only, that this particular morning she said the sacks were heavy.

But now, all of this happens while the train stops there.It stopped there in the station at Monahans.

There was no way in the world that the railroad could have known, the T & P Railroad could have possibly known how many sacks and what weight the sacks would be that the Railway Post Office Company — the United States Post Office Company employees would sack on that train.

Now then —

Earl Warren:

Had she been told before that she must do this herself but must not — must not get any other help?

J. B. Look:

No, sir.

Earl Warren:

She — she must not use this Mexican?

J. B. Look:

No, sir.

Earl Warren:

You mean that it wasn’t as counsel stated that this — it was?

J. B. Look:

No, sir.

She stated that she couldn’t wear skirts and hose, he — the superior and still do that job.

Now, her superior that she is talking about, that first told her about skirts and hose, worked on another division of the railway and he had told her that so long as your duties are performed — you can perform your duties satisfactorily, we want you to wear skirts and hose.

But one of her duties was handling the mail, which is the normal everyday duty of agent-operators throughout the — the country.

Now then, when she got to Monahans, someday beforehand, she said this when she was reminded that she was not performing that function.

She — she said, “I can’t wear skirts and hose and do that.”

He says, “All right, then don’t wear skirts and hose but your job is to handle the mail.”

She never did tell anyone that the job was too strenuous for her, either on that morning or any other occasion, she never complained to anyone.

Now then, we get to the — to the Tiller case.

Earl Warren:

Well, what was her purpose of talking to them if she wasn’t complaining it was too heavy for her?

J. B. Look:

She said she would have to climb up and down on those carts and she couldn’t dress in skirts and hose and go — she’d be exposed that way, you see, out around the station.

J. B. Look:

That was her only complaint that I can’t — now the — also in the other division, a woman wear skirts and hose, “I can’t wear skirts and hose and climb up on and around those carts.”

And he said, “Well, don’t wear skirts and hose.”

Charles E. Whittaker:

You mean by that that she then was asking permission to wear man’s clothing?

J. B. Look:

Yes, sir, to wear slacks or some other appropriate tights.

Now then, of course, in order for the man to be —

Earl Warren:

Is there no — is there no limit in this — in that particular state as to the weight that women — weight of packages women are permitted to handle in their employment?

J. B. Look:

Not that I know of, Your Honor.

Earl Warren:

All states do.

J. B. Look:

I’m in the personal injury —

Earl Warren:

(Voice Overlap) is pretty — pretty heavy weight to have women in there, throwing around (Voice Overlap) —

J. B. Look:

One or two sacks, I think.

The testimony will show it weighed that much.

But she testified she had never at any time ever had any other trouble.

She’s been doing this now for 15 months, handling mail, not off just to this train but trains up and down the line.

She’s been working that long.

Now then, in order for there to be —

Earl Warren:

Why couldn’t she get — why wouldn’t they permit her to use the Mexican laborer if he was available?

J. B. Look:

There is no evidence that anyone told her she could not get help.

There was no evidence as to that.

The evidence was she was to assist in the handling of the mail.

Now, it depends on how many railroad carts there are.

One person works at the door, that is all.

She was to — to assist.

She hadn’t been doing it.

Earl Warren:

Well, I understood counsel to say that when — when she took it up with her superior, her superior told her that, “Now, you’ve got a man’s job and —

J. B. Look:

Yes.

Earl Warren:

— you’ve got to do it yourself.

You’ve got to do it and do it without other help.” (Voice Overlap) —

J. B. Look:

I don’t — the record, Your Honor, I don’t believe will reflect that he told her that he — she could not have help.

William O. Douglas:

There was testimony that Judge Cameron puts in the footnote on page 191?

J. B. Look:

Yes, sir.

William O. Douglas:

That she said, “I have been instructed I was not to ask but I couldn’t have anyone to work the mail with me, there wasn’t any need to ask.”

J. B. Look:

Well, sir, that — I don’t —

William O. Douglas:

In Footnote 5 on page 191.

Earl Warren:

(Inaudible)

J. B. Look:

Of the record.

Earl Warren:

Was it 191?

J. B. Look:

191, Footnote 5.

Earl Warren:

Oh, yes, yes.

J. B. Look:

Well, when pressed further she stated, Mr. Higginbotham, when asked about that — Mr. Higginbotham in that same note, “Told me, now, this is just oral but this is what he said, the best I can remember, I was to take this one car, this one truck and take it out and take what is on there and put it on the train and take this on the train and bring it and put it in the baggage room.”

She never did ask for help.

Now, our proposition —

Earl Warren:

Now — now, is that — that’s referring to this particular night?

J. B. Look:

At no time, sir.

Earl Warren:

No, no, no, I’m talking about the — what you just read.

No, Mr. Higginbotham told me, this is just oral, but this is what he said, the best I can remember, I was to take this one car, this one truck.

Now, is she referring to that particular night?

J. B. Look:

No, sir.

That was her regular duty to do everyday.

Earl Warren:

I — I see.

J. B. Look:

There was no conversation between her superior and — and the petitioner on this day at all.

There wasn’t any — there was no conversation whatsoever.

There was evidence that this was a normal regular duty of all agent-operators and that she had been performing.

Now, our position is this that a request for help or assistance is essential in a case such as this to establish liability for this very reason, your negligence of course depends upon the existence of a duty.

The existence of a duty arises by virtue of a reasonable anticipation that some injury will befall someone.

Now then, thousands upon thousands of people, men and women have — did this — performed the same task many, many times and are performing it many, many times even today, namely, transferring the mail.

It is not an inherently dangerous task.

Earl Warren:

Do all of your women operator-agents or what did they call him here, agent-operators on this railroad wear men’s clothing?

J. B. Look:

The agent — if they have a train — a passenger train that carries mail, they’ve got to work the train.

Now, whether or not they wear men’s clothing or not, I don’t know.

Earl Warren:

Well, this woman was told according to Thomson’s argument that — that she must wear — wear it because she had a man’s job to do and — and she had to wear men’s clothing if that was necessary to do it.

J. B. Look:

Yes, sir.

Earl Warren:

Now, my — my question is, is that — is that the normal instruction you give to your women agent-operators and are they suppose, all of them, to wear men’s clothing when they — if they handle any mail?

J. B. Look:

They are not instructed to wear men’s clothing.

They are told if they cannot wear women’s clothing and work the mail, then they wear men’s clothing.

Now, that will vary from station to station, I mean they don’t tell them what — what they can wear and what they cannot wear.

Earl Warren:

Well, do you — as —

J. B. Look:

But they —

Earl Warren:

— you — you say this is an unusually heavy load this — in this particular day.

How would the woman know — know when she’s taking care of the mail whether there was going to be very light load or whether there’s going to be a very heavy one like — like this.

And I would think that it would have some significance as to how she dressed, if she dressed normally in women’s clothes.

And occasionally, she got a — a truck like this, it would be a dangerous thing for her, wouldn’t it, to handle — handle mail bags that — that are up to 75 pounds and — and running around this trucks in a woman’s clothing, skirts that might get tangled up on — on things that trip her and injure her?

J. B. Look:

The — the testimony — the objection to the wearing of the women’s clothes was that she would have to climb up on these carts, on the record page 36A, one of these regular little carts.

She had to climb up on to the cart and it —

Earl Warren:

And I suppose if it was — it was packed higher with mail, she might have to get on top of the mail.

J. B. Look:

I — I suppose that she might.

Earl Warren:

(Voice Overlap) haven’t you?

You’ve seen that in the railroad, you are doing this, haven’t you?

J. B. Look:

That is true in your larger —

Earl Warren:

Yes.

J. B. Look:

— stations.

This was a very small town station with a very small number of people.

For instance, in — in — say in Dallas, they have people that do nothing but panel mail off a train, say your agent there of course is a very high official and you’re operator there, they’ll have many of them on duty.

But in this little stations like Monahans, where they — and Merkel and all of the other little towns up and down the T & P and up and down the Santa Fe and every other railroad that it’s normally just a part of her duties.

It was all of the operators perform this duty.

No one had ever asked for additional help or said that it wasn’t — that they couldn’t do it.

Now then, if you have a duty that’s just a normal duty, that is a duty that’s imposed by the nature of the occupation which we have here.

If for some reason this employee can’t do it, the employee must in order to establish negligence, in order to establish a duty.

In other words, a reasonable anticipation of injury, the employee must apprise the employer of the fact.

Now, we have this in here.

J. B. Look:

The petitioner had been undergoing treatment for a kidney ailment.

She — the respondent knew nothing about it.

She went to a private physician.

She told — didn’t tell her boss.

She didn’t tell anyone else.

Now, that may have weakened her on this particular day.

Earl Warren:

Did what?

J. B. Look:

It may have weakened her and caused the injury or what happened, we don’t know, except that she and other employees did it constantly.

The only thing different is she was ill on that day and had been treated by a doctor.

Now, we didn’t know about it.

There was no way that we can tell (Inaudible) orders, the employee goes to see a doctor and maybe suffering some illness.

Can it possibly be said that merely requiring someone expecting him to do their normal job would be negligence if by virtue of the illness it makes it dangerous if we don’t know about the illness?

Earl Warren:

She didn’t complain of — of the bad kidneys.

She’s claiming of an injured back after —

J. B. Look:

Yes, sir.

Now —

Earl Warren:

— handling this mail.

J. B. Look:

Yes, sir.

Now, I’m just saying that the kidney ailment may have weakened her to some extent trying to account for this — this accident.

Now, her actions are relevant.

The Tiller case notwithstanding, not to determine whether she was guilty of contributory negligence or not but to determine whether or not we were apprised of any facts from which we could reasonably be expected to anticipate an injury, thus, giving us a duty to perform.

William J. Brennan, Jr.:

Well, there was some evidence, was there not, that this was in the Christmas season?

J. B. Look:

This was — happened on the 2nd day of December, Your Honor.

William J. Brennan, Jr.:

Well, I mean wasn’t the — wasn’t the suggestion that the volume of mail was a little larger or perhaps much (Voice Overlap) —

J. B. Look:

There was some evidence that it was starting to get larger, yes, sir.

William J. Brennan, Jr.:

And I suppose the railroad was charged with that knowledge with — equally with the petitioner.

J. B. Look:

She was the only one with the railroad that ever touched the mail on that.

William J. Brennan, Jr.:

I know but the railroad simply doesn’t deny that it would have knowledge to the Christmas season —

J. B. Look:

No, no, no.

William J. Brennan, Jr.:

— the volume of the mail was larger.

J. B. Look:

No.

William J. Brennan, Jr.:

Don’t you think that’s a fact too which bears upon whether or not there should have been some affirmative aid offered her by the railroad?

J. B. Look:

No, sir, because we might know that the mail is picking up, but she has got a duty to perform as she sees fit.

And at such time as the mail becomes heavy, if she then request assistance and we refuse to give it to her, we thereby at all notice.

In other words, if the testimony had shown what she pled, which it didn’t.

She, as a matter of fact, testified she didn’t even talk to her boss that morning.

Earl Warren:

But if she had been told sometime before, I say if she had been told —

J. B. Look:

Yes.

Earl Warren:

— sometime before that she had to do this work herself —

J. B. Look:

Yes, sir.

Earl Warren:

— and that she was not to get anybody else to do it.

Wouldn’t that bear on the question as to whether on that morning she should have asked for — for some more help?

J. B. Look:

Sir — yes, sir, if —

Earl Warren:

If (Voice Overlap) —

J. B. Look:

But if the record would bear that out.

Actually, what they are referring to there is the only conversation she had with him.

The subject matter of strenuousness of volume didn’t come up.

The only question was, she said, “Mr. Higginbotham, I can’t crawl up on that cart wearing skirts and hose.”

William J. Brennan, Jr.:

Well, wasn’t — wasn’t there also a fact question whether she testified and she’d been instructed that she was not to ask if she couldn’t have anyone to help her with it?

There wasn’t any need to ask because she couldn’t get any help?

J. B. Look:

No, sir.

William J. Brennan, Jr.:

Well, that — why not?

She testified with that effect too.

J. B. Look:

She made that statement on further examination to ask her what she was referring to by that.

She said the only thing she was referring to was this conversation that she had, none other.

William J. Brennan, Jr.:

Who is Slick Sligh —

J. B. Look:

Slick Sligh was a — was a fellow employee, so with Jack Kittrell.

William J. Brennan, Jr.:

And she was asked — especially whether she asked them for assistance and she said she didn’t because she had been told by her superior not to ask for any help and that that maybe she wasn’t telling the truth but was is not for the jury to decide?

J. B. Look:

I don’t believe it was, Your Honor.

If the bear — mere statement —

William J. Brennan, Jr.:

Ordinarily, I — issues of credibility for the jury?

J. B. Look:

Issues of credibility are for the jury, but if she is — if she later on explained to weigh that answer herself and you ask her, “Who told you not to ask for help?

What were you referring to?”

And she said just that prior conversation, then of course there is nothing — nothing in there.

William J. Brennan, Jr.:

Well (Voice Overlap) —

J. B. Look:

Now, who told her not to ask for help?

William J. Brennan, Jr.:

I don’t —

J. B. Look:

She doesn’t, in that statement, state who didn’t ask her for help.

Remember, she was there in Monahans and no one — she — she was on the stand.

This isn’t a case where we have an unfortunate accident where somebody is dead.

She was on the stand and she testified unequivocally that she never had intimated even a need for help to anyone.

Earl Warren:

Where did she — where did she testify to that?

Charles E. Whittaker:

Are you referring to the bottom of Footnote 5 on page 91?

Reading, “As stated, her counsel, on direct examination, developed, in meticulous detail, everything which was said between her and her superior —

J. B. Look:

Yes, sir.

Charles E. Whittaker:

— and she did not intimate that she had been instructed to perform the mail handling alone or was not to request assistance.”

J. B. Look:

Yes, sir.

Earl Warren:

Is that all you referred to in the record?

J. B. Look:

Sir?

Earl Warren:

Is that all you referred to on this statement that you just made to us?

J. B. Look:

Yes, sir.

Earl Warren:

Because she said she has never on any occasion done any such thing.

J. B. Look:

Yes, sir.

We thought forth every conversation she had with her and she never in any of them requested.

It’s an absence of something is what I’m trying to show and of course you can point out —

Earl Warren:

Well, I know but that’s not what you said, sir.

You said that she testified that she had not on any other occasion ever — ever asked anybody about this.

Now, there’s a lot of difference between testifying that way and not testifying at all on the subject.

J. B. Look:

That would be in the — well, sir, perhaps I stated the converse of it, I didn’t — I didn’t intend to — to do that.

What I’m getting at is this —

Earl Warren:

Go on to say —

J. B. Look:

The complete conversation in regard to this was brought out that she had with Mr. Higginbotham.

And actually, there was no disagreement between Higginbotham and — and the petitioner at the trial as to what happened.

And she said that’s the only conversation she had with him and there’s certainly nothing in there to indicate that she had any more conversation.

Now, the burden was on her in this case.

The burden was on her.

William J. Brennan, Jr.:

Well apparently, the trial judge thought there was enough to let the jury decide the —

J. B. Look:

Yes, sir.

William J. Brennan, Jr.:

— fact, isn’t it?

J. B. Look:

The trial judge did, yes, Your Honor.

Now, the opinion of the Fifth Circuit, a very reading of it shows and — that they exhaustively searched the record.

It’s right with — with annotations and of course what the case amounts to is an analysis of the facts.

Now then, we get into this situation, may it please the Court.

Ordinarily, when a case turns upon merely an analysis of the facts in the particular case, this Court does not concern itself with those cases because by the very nature they are very limited in our application.

In recent years particularly of course more and more of these cases like the Rogers case, like this case, like the case yesterday, two of them I believe, and your employer-employee relationship.

Now of course, there — there is no really bright dividing line between negligence and non-negligence.

Judges always have and always will differ.

This Court in the Wilkinson case pointed that out.

Well then, here’s the difficulty.

We have our trial courts and we have our Courts of Appeals, which ordinarily are intended to be and are courts of last resort.

In other jurisdictions, either by statute or a court rule where there are intermediate courts, the highest court will not review questions of facts because it necessarily involves merely a second-guessing.

William O. Douglas:

What do you — what do you say to the testimony at the bottom of page 18 in the record?

This was on direct examination I gather.

J. B. Look:

Yes, sir.

William O. Douglas:

And the Court of Appeals said that on direct examination, she did not intimate that she’d been instructed to form the mail handling alone and was not to request assistance.

That’s in the footnote, page 191.

J. B. Look:

Yes, sir.

William O. Douglas:

The bottom of page 18, it indicates on direct examination that she says she was instructed to handle it alone.

J. B. Look:

If it would be read in context, Your Honor, it said — well, I told him that the Mexican had been handling it and that the trains had been getting out and he instructed that you were to handle it personally.

He said, “I was to handle it anyway regardless.”

Hugo L. Black:

He said that you found that anyhow, didn’t he, that regardless that he had hired — that he had hired her to do a man’s job, she will receive the same pay as a man and those were her duties and that she had to do them.

J. B. Look:

Yes, sir.

She stated that she had and previously gotten another employee to do her work and that the train could still been getting out on time.

Hugo L. Black:

But then didn’t she say what I said down at page 18?

Didn’t she say that she complained to the man or she accused him, that he told her she had hired her to do a man’s job and she had to do it?

Top of page 18.

Who was she talking to?

J. B. Look:

She was talking to her superior.

Hugo L. Black:

Her superior?

What does she say he said?

Right at the top of page 18.

J. B. Look:

He said that I was hired out to do a man’s job and had to do it regardless.

With that we’re in perfect agreement.

But if we look at the —

Hugo L. Black:

What was she complaining about?

J. B. Look:

She was complaining because she couldn’t wear her skirts and hose and trying to get up on a cart because she would be exposed and be unladylike.

Earl Warren:

Well, how do you — how do you explain this — this answer on the bottom of page 18 that Justice Douglas called your attention?

And that it seems to me she’s talking about more than that there.

Taking it in context to — it seems to me that she is complaining that — that she needs help and he says, “No, you’re doing a man’s job and you do it by yourself.”

J. B. Look:

I certainly can’t read that construction in there, Mr. Chief Justice.

She stated that somebody else has been doing it for her voluntarily.

William J. Brennan, Jr.:

Well, it’s a test whether a judge, you or I or anyone else can read it but whether reasonably the jury can read it that way, that test?

J. B. Look:

That is — that is one of the tests, Your Honor.

William J. Brennan, Jr.:

Well, that is the test, isn’t it?

J. B. Look:

Yes, sir.

William J. Brennan, Jr.:

The — where the problem basically —

J. B. Look:

Yes.

William J. Brennan, Jr.:

— here is whether there was a jury question or wasn’t.

And —

J. B. Look:

Yes, sir.

William J. Brennan, Jr.:

— if that can be read as the Chief Justice suggests, doesn’t that answer that there was a jury question?

J. B. Look:

It does if you say that the jury can take any statement completely out of context.

William J. Brennan, Jr.:

I — I don’t think it’s a matter of taking it out of context.

It’s a question the jury, after all, the jury see the witnesses.

J. B. Look:

Yes, sir.

William J. Brennan, Jr.:

And certainly we didn’t, neither did —

J. B. Look:

Yes, sir.

William J. Brennan, Jr.:

— the Court of Appeals.

J. B. Look:

Yes, sir.

William J. Brennan, Jr.:

And the trial judge saw the witness — witnesses and the trial judge felt that on what the jury saw and what the jury heard, the jury could decide whether to (Inaudible) and that’s why he sent it to the jury, wasn’t it?

J. B. Look:

Yes, sir.

William J. Brennan, Jr.:

And that’s not ordinarily the way we do these things in Negligence Act?

J. B. Look:

That is ordinarily.

But I don’t believe this statement can be taken out.

You can take any statement, any one question and answer completely out of context

William J. Brennan, Jr.:

Yes, but I didn’t —

J. B. Look:

And say that presents the jury issue.

William J. Brennan, Jr.:

I didn’t think that the determination was based upon what we might do taking a printed record and say the thing mattered, it was rather what the trial judge ordinarily might properly feel that the jury could draw upon it, that they could draw the inference which the Chief Justice’s question suggests.

That’s a jury question for the jury to decide, isn’t it?

J. B. Look:

No, sir.

I — I think that the — the test is whether taking the printed record and with what we have whether a reasonable man could for more than mere scintilla of the evidence have reasonably arrived at the verdict that they did.

It’s not what the trial judge was — thought at the time, but it’s what we have the benefit of seeing the record, that is the purpose of having the record.

Hugo L. Black:

But we have — happened to say wasn’t it that he was an unreasonable man when he heard the evidence and saw the witnesses and decided to the contrary, do you, as I understand we’d have to say he’s not a reasonable man.

J. B. Look:

No, sir.

Hugo L. Black:

And there’s no reasonable man could find it.

J. B. Look:

No, sir.

Hugo L. Black:

The jury found it and he found it as 13 of them.

J. B. Look:

I — I don’t believe that a jury verdict means that the trial judge would have found it the same way.

William O. Douglas:

Well, he (Voice Overlap) —

Hugo L. Black:

Well, he left it — he sat and left it to them, didn’t he?

J. B. Look:

Yes, sir, he sat and left it to —

Hugo L. Black:

(Voice Overlap) that sounds like he thought it was reasonable, doesn’t it?

J. B. Look:

It sounds like — he thought that reasonable man could arrive at that answer, yes, sir.

William O. Douglas:

Well, at page 168, near the top, he instructed the jury on this point we’re talking about that she asked her superiors for help to unload the heavy mails, which was refused her although assistants were then available.

So he’s been reading that — he was reading that record or listening to the witnesses.

It’s quite differently from the interpretation that you could get.

J. B. Look:

No, sir.

The charge was the plaintiff alleges reading the sentence before them, sir.

He was referring to the allegations.

Earl Warren:

Ms. Tarpley, did you — have something in rebuttal?

Beverly Tarpley:

May it please the Court.

It seems to me that the question in which has been advanced here is simply an indication of the fact that this was a fact question involved, which was properly left in the jury and in the trial — trial judges’ wisdom was left to the jury and that it should have been so left.

The petitioner testified that she had asked for help and had been — or rather that she had been instructed not to ask for help.

The witness Higginbotham on page 89 of the record testified that this was not her sole duty and that she was only to assist in handling the mail.

There’s a square conflict of fact between the two witnesses or between the testimony of two witnesses.

And certainly, that’s — by its very essence, the type of thing which should be left to a jury determination in which the trial judge in his wisdom did leave to a jury determination.

Now, throughout the record there are simply conflicts of fact which should and all through have been left to a jury determination, and that determination ought to be upheld.

The respondent has said over and over again that the petitioner or that the railroad was not apprised of the danger of this work.

But again, we have the testimony of the petitioner that she had been told that this was a man’s work.

Certainly, that shows notice within itself that this was the type of work which a woman ought not to be required to handle without assistance.

Now —

Hugo L. Black:

Who was — who was the District Judge here?

Beverly Tarpley:

The Honorable T. Whitfield Davidson, who is now —

Hugo L. Black:

How long has he been a judge?

Beverly Tarpley:

Well, over 20 years.

He’s now the presiding judge of the Northern District, if the Court please.

And this Court has held in the case of Lillie versus Thompson, which was the case in which a woman who has suffered a criminal attack in a poorly lighted section of the freight yard.

This Court held that an employer had to reasonably anticipate the dangers of a particular situation as those would affect a particular employee and had to anticipate those dangers.

That’s exactly the same type of thing that is present here.

An employer would have to anticipate the danger to an employee of requiring that employee to handle work which was beyond her physical strength.

Beverly Tarpley:

In short, we think that this case has one issue and one issue alone and that is that under all the circumstances, under all the conflicts and the testimony that this was a jury matter and as this Court has said repeatedly again and again, one that should have been left to the jury determination.

That the jury having reached the decision, that that decision should not be upset by second-guessing in the record or sitting here and attempting to construct inferences out of the printed record when the jurors have the benefit of the living witnesses in the Court’s charge.

Has — it has been said this Court repeated again in — in the Rogers case that under all the circumstances if in the slightest degree, this Court — the employer’s negligence contributed to the employee’s injury then the Federal Employers’ Liability Act apply.

It also said in the Schulz case that if the evidence was such that the — the jury could in reasonable probability arrived at a verdict of negligence that verdict should not be disturbed.

There is this final factor which I would like to bring to the Court’s attention in which I think suggest the basis for the decisions of the Fifth Circuit and the decision advocated by the respondent here.

In neither the respondent’s brief nor in the opinion of the Fifth Circuit have the latest pronouncements of this Court been advocated as authority for those decisions.

In the respondent’s brief, not one case of this Court is cited as authority for the proposition that this situation presents a case of non-negligence or that this is a case which should not have been left to the jury.

The same is true of the opinion of the Fifth Circuit, which was based primarily on the Wadiak case, a case out of the Fifth — of the Seventh Circuit.

We feel under all those circumstances that both the respondent and the Fifth Circuit have refused to follow the latest pronouncements of this Court and have on that basis and that basis alone, on the theory which they have which differs from this Court have decided that this case should have been taken from the jury.

Felix Frankfurter:

You mean — did I understand you to say that the counsel do not bring to the attention of the Fifth Circuit the decisions of this Court in this class of cases?

Beverly Tarpley:

No, sir, I’m sorry.

I said that the decision of the Fifth Circuit did not cite as authority the latest pronouncements of this Court.

Felix Frankfurter:

How — can you say, as your experience is trivial, Fifth Circuit cases enable one to say that there is a current — that there’s an attitude has occurred adjudication by that Court in this regard of the decisions of this Court?

Beverly Tarpley:

If the Court please, I’m not prepared to present other cases.

I — I have a personal opinion —

Felix Frankfurter:

(Voice Overlap) —

Beverly Tarpley:

— which the Court is not interested in, I wouldn’t imagine –[Laughter]

Felix Frankfurter:

Well, I — I asked you a very specific question and I don’t mean that this — you know my attitude toward these cases.

Beverly Tarpley:

Yes, sir, I do.

Felix Frankfurter:

But this — but you latterly raised a question in which I am deeply interested to — just the relevance in my point of view.

I didn’t mean to say that — I’m not talking about your case but having been in this case and therefore presumably in other cases and therefore presumably having studied what is called in Louisiana the jurisprudence of the Fifth Circuit.

Can one find in that jurisprudence, namely, in a current of cases before that Court?

Now, that’s all bringing into question any motive that they disregard — that they disregard, they consciously do not take into account the decisions of this Court?

Beverly Tarpley:

Yes, sir.

I sincerely feel so.

Felix Frankfurter:

I don’t mean to say you feel so but —

Beverly Tarpley:

Well —

Felix Frankfurter:

— suppose if — if I made it my job to look at all the reported cases in the Fifth Circuit, I would find that they don’t care what this Court has decided.

Beverly Tarpley:

May I cite a specific —

Earl Warren:

That’s a pretty rough question (Voice Overlap) —

Beverly Tarpley:

— example which is beyond the realm —

Felix Frankfurter:

Well, I just want to know what your impression is because that line should be — very well, if you —

Earl Warren:

I think that’s — I think that’s a pretty rough to question to ask (Voice Overlap) —

Beverly Tarpley:

Well —

Felix Frankfurter:

I didn’t mean to say — I don’t mean to say you — you shouldn’t prevail apart from that —

Beverly Tarpley:

Well —

Felix Frankfurter:

— but you did say something like that, didn’t you?

Beverly Tarpley:

Yes, sir.

Felix Frankfurter:

I didn’t initiate this remark.

You initiated it, didn’t you.

Beverly Tarpley:

If I may say this, after the opinion of the Fifth Circuit and this case was handed down and prior to the term — the petitioner’s term for motion for rehearing had expired, this Court published it’s opinion in the case of Schulz versus Pennsylvania Railroad which was a Jones Act case and similar of course on the liability angle, the Federal Employers’ Liability Act.

In that case, this Court said that negligence cannot be measured like a — an acre of ground but that is something that should be left to the — the sound discretion of the jury.

That case was particularly called to the attention of the Fifth Circuit by the petitioner in her motion for rehearing and that motion for rehearing was overruled without opinion.

Thank you.