Ramsouer v. Midland Valley R. Co.

• Decision Date: 17 February 1942
• Docket Number: No. 11 Civil.,11 Civil.
• Parties: RAMSOUER v. MIDLAND VALLEY R. CO.
• Court: U.S. District Court — Western District of Arkansas

44 F. Supp. 523

RAMSOUER v. MIDLAND VALLEY R. CO.

No. 11 Civil.

District Court, W. D. Arkansas, Fort Smith Division.

February 17, 1942.

COPYRIGHT MATERIAL OMITTED

Fadjo Cravens, of Fort Smith, Ark., and Clarence C. Chilcott, of Kansas City, Mo., for plaintiff.

R. A. Young, Jr., of Fort Smith, Ark., James D. Gibson, of Muskogee, Okl., and H. L. Smith, of Tulsa, Okl., for defendant.

MILLER, District Judge.

On November 4, 1938, plaintiff, as the surviving widow of Edward E. Ramsouer, filed her complaint seeking judgment for damages alleged to have been sustained by plaintiff on account of the death of her husband while in the discharge of his duties as an employee of the defendant. The plaintiff alleged that on January 10, 1937, the deceased was assisting the defendant in setting out a car of merchandise on a side track adjacent to the loading dock of the Osage Flour & Feed Company in Pawhuska, Oklahoma; that "in so doing when and where by reason of the negligence and carelessness of the defendant, the nature of which is unknown to the plaintiff and unascertainable by her, said car of merchandise was caused to leave the rail of said switch track upon which it was being moved and run against, upon and over said Edward E. Ramsouer, as a direct result of which he was injured — from which injuries the said Edward E. Ramsouer died on January 20, 1937".

On February 16, 1939, plaintiff filed her first amended complaint in which similar allegations were made and also, "that said decedent, Edward E. Ramsouer, was merely a brakeman or switchman and performing the usual and ordinary duties of such for defendant when he was injured, and that it was not his duty to inspect, repair or maintain said track, engine, train or the cars composing the same, including the car of merchandise aforesaid, and that he had nothing to do with any such inspection, repair or maintenance, but that said track, roadbed, engine, train, and cars, were under the exclusive supervision and control of the defendant and not of this plaintiff's decedent and that the derailment hereinabove referred to was such a casualty as would not ordinarily occur but for the negligence of the defendant."

On June 22, 1939, the plaintiff filed a second amended complaint containing allegations similar to those in the complaint and the first amended complaint, but more specific as to the time and place of the injury. Plaintiff also alleged, "when and where by reason of the negligence and carelessness of the defendant, the nature of which is unknown to the plaintiff and unascertainable by her, said car of merchandise while being so moved, was caused to leave the rail of said switch track and move in the direction of decedent and said dock at approximately where decedent was standing and to run against, upon and over decedent", etc.

Answer was filed by the defendant to the first amended complaint on May 29, 1939, and to the second amended complaint on December 21, 1939; on June 3, 1940, amended answer to second amended complaint was filed. The defendant denied that the injuries to the deceased were caused by any negligence on the part of the defendant or any of its agents and servants and alleged contributory negligence and assumption of risk on the part of the deceased.

On August 22, 1940, motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, was filed.

On February 18, 1942, a pre-trial conference was held, at which time counsel for plaintiff and defendant stipulated that the suit is based upon the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, and that at the time of the injury to the deceased he and the defendant were engaged in interstate commerce.

The record discloses that the plaintiff on April 6, 1937, commenced an action in the District Court of Tulsa County, Oklahoma, seeking a recovery on the identical cause of action set forth in the second amended complaint filed herein; that in said case the plaintiff took depositions of twenty-two witnesses, nine of them being employees of the defendant and one of them being a physician representing the defendant as local surgeon at Pawhuska, Oklahoma; that the case was tried in the District Court of Tulsa County, Oklahoma, and in addition to the witnesses whose depositions had been taken the plaintiff had two other witnesses; that the facts and circumstances existing at the time of the injury were fully developed in said trial and at the conclusion of said trial the trial court indicated that it would sustain a demurrer to the evidence offered by the plaintiff, whereupon the plaintiff moved to dismiss said case and the same was dismissed without any ruling by the District Court of Tulsa County on the evidence in said case.

Prior to the hearing on the motion for summary judgment and in support thereof, the defendant was permitted to file the depositions of the witnesses which had been taken by the plaintiff and in addition thereto the defendant was permitted to file a transcript of the ore tenus testimony of six witnesses, including the plaintiff who had testified in the District Court of Tulsa County, Oklahoma, upon the trial of said case in that court.

During the hearing on the motion for summary judgment and near the conclusion of the same, the plaintiff asked permission to file affidavits of Josephine M. Ramsouer, the plaintiff, O. W. Henson and Thomas Bradley, which the court permitted the plaintiff to file. At the conclusion of the hearing on the said motion the court ordered the parties herein to file briefs, which has been done.

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law".

On such a motion the court is not authorized to decide an issue of fact, but is to determine whether the pleadings and record before the court creates an issue of fact to be tried. If the depositions, admissions on file, and affidavits and pleadings raise any question of credibility of witnesses or weight of evidence, the motion should be overruled, and courts should proceed with care in order that this procedure be not perverted to the trial of disputed questions of fact upon affidavits. However, where there is no genuine issue of fact the court is required by Rule 56(c) to render summary judgment in favor of the moving party if such party is entitled thereto as a matter of law. Moore's Federal Practice, Volume 3, pages 3184, 3185. See also additional text and cases cited in 1941 Cumulative Supplement, pages 3184-3185.

The question before the court is whether there is a genuine issue as to any material fact. If there is no such issue then summary judgment should be rendered. This rule has been invoked in numerous cases. It is impossible to state a general rule for determining whether a genuine issue of fact exists in a particular case. The determination in each case must depend upon the particular facts and circumstances of the case. So it is in the instant case, and the court has examined with care the pleadings, depositions and transcript of the oral testimony given by plaintiff and her witnesses at the trial in the District Court of Tulsa County, Oklahoma, as well as the affidavits which the plaintiff was permitted to file herein at the conclusion of the hearing on the motion. The court has also been favored with most excellent and thorough briefs by counsel for both plaintiff and defendant.

The motion having been filed by the defendant, it has the burden of showing uncontrovertible facts that as a matter of law there is no issue as to any material fact. Judge Reeves of the District Court for the Western District of Missouri in the case of Clair et al. v. Sears Roebuck and Company, 34 F.Supp. 559, correctly stated the rule as follows: "A summary judgment upon motions of this character should never be entered, save in those cases where the movant is entitled to such beyond all doubt. The facts conceded should show with such clarity the right to a judgment as to leave no room for controversy or debate. They must show affirmatively that plaintiff would not be entitled to recover under any and all circumstances."

If the court is clearly convinced from the record before it that if the action were permitted to go to trial, a verdict would necessarily be instructed for the moving party, summary judgment should be granted.

The Federal Employers' Liability Act, 45 U.S.C.A. § 51, provides that every common carrier by railroad while engaged in commerce between the several states "shall be liable in damages to any person suffering such injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee * * * for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed,...