good morning good morning may please the court i'm already groups for the plaintiff cohen jeffrey walters never quested five minutes to reserved for above very well the district court's order in this case that peach to recognize and i quote the driver of the vehicle was unable to see the turn into name the vehicle ran over an embankment when the driver finally executed the trunk that scenario as phrase by the district court describes acts of negligence what it what is the duty that you claim was breached by the defendant alleges the legal conclusion that there was negligence here there were injuries i don't see in your complaint a duty alleged any breach of a of a duty so i'm asking you today what is the duty you claim was breached and what is that duty arise over the duty of arises from the federal employer's liability act and that statute imposes a duty on the defendant real road to exercise ordinary care to provide the plaintiff with a reasonably safe place to work i mean that's a legal conclusion too i mean normally in a motor vehicle case you look at different sources this is kentucky i think you would look to the kentucky motor vehicle law duty i think it's it's something that is implicit any time somebody gets behind the wheel of a vehicle stay on the paved portion of the roadway unless there's some over arching reason to depart from the roadway and that wasn't present in this case is this a public road is a gravel road but it is i mean i see your argument mainly complaint was not particularly well drafted but what i would suggest to the court is that the district court's order recognized that the plaintiff was claiming the very act of driving off the road was negligence but see ok i mean you could drive off the road and not be negligent you could you could agree with that absolutely and it's your duty to establish that the act of driving off that road was negligence not their duty to report it as well if they are going to claim that there is a reason that the driver went off the road that is not negligent they're going to come up with some evidence for it in the case law that we cited including the l r annotations all say if you go off the road unless there is some reason in the record then that is negligence in there too if if there were a duty under the kentucky motor vehicle code staying on the road then it would be perhaps negligence per se or for evidence the best way to tee it up for you and your opponent here that the duty is to provide this safe work environment and your argument is that when you're riding along in a car the safe environment envisions you staying on the road you know off and driving across somebodies right yard so if that's the dude in you have to convince us that it is the question is why did he get off the pavement or the gravel and get on to the driveway and if there was some unavoidable or reason for that than probably not negligence but doesn't it come down here to the to a question of fact whether seeing the turn your have alleged that he saw the turn knew that he couldn't make it safely yet turned anyway yes that's that's why going off into the yard and violated this duty to keep the employees that it's is that it that's exactly so  if if we teed that up then we need you to explain why that is the case and he did tell us why it's not all right in the district court the plane of course are given this is documents sixty eight it's a peach thirty five eighty eight in the reason i'm going into the record this deeply is because of their waiver argument and they claim that we didn't raise these things below but the plaintiff argued either the driver was not paying attention and therefore didn't see the road under which he was turning or he did see it and feel them in control of his vehicle either way those acts are emissions or negligent you can't just drive off the road unless there is some other issue and there was no evidence that there was an animal there was no evidence that there were adverse weather conditions there was no evidence of a mechanical failure in the crew van so in the absence of some intervening cause in the record the fact that the driver drove off the road should be sufficient to sustain plaintiff's a burden under the feel it and i think that's that's where you get yourself in trouble that's almost three steps accident occurred so therefore there itself negligence when you pass to the point that it can be done safely well that's that really is arguing because you had an accident you must be negligent but that's not what the law is i mean in such something causes an accident but doesn't mean it's necessarily negligent conduct and getting back to really need duty and a breach of duty the failure to provide a safe environment for employees and this violates that duty that sounds like a conclusion to that i'm not sure that that's factually based and just a conclusion itself that there is an accident and therefore there's a failure to provide a safe working environment i'm not sure is sufficient well i think in this case a jury could find in the plane of testified that the there was nothing to prevent the driver from simply stopping if he didn't know where he was backing up and then making the turn safely and i think a jury could find from that evidence that the driver was negligent for proceeding when he either didn't know where the curve was or he did it any executed the turn improperly both of those are negligent acts and judge white i'm sorry can a deviated a cogent x from what i mean what does it arise from i mean it's not the kentucky motor vehicle code which is what does this do to your ra we've cited in our brief multiple cases concerning the duty of a driver to stay on the roadway unless there's some reason some other cause that causes  to leave the world away and i understand the court's question and the axiom has always been that the mere happening of an accident isn't itself evidence of negligence but when the accident is caused by a negligent act and we've got two different things in the record then that those things are evidence of negligence in building this isn't a situation where somebody happened upon a car in the ditch and nobody knows how it out there this car got in the ditch because the driver made a turn where he shouldn't have made a turn but there's no evidence he was is that he went by that the street and when he turned it was too late exactly that's your alleged negligence that create and there's a question in your argument is this a question of fact as to whether that's actually what happened here right absolutely all right you'll have your of the driver operating the vehicle in a reasonable appropriate and careful manner those are the words of the honorable danny reeves of the eastern district of the talking after he had viewed all of the evidence the plaintiff could produce to support their allegation that the plaintiff was injured as a result of the negligence of c s x the simple question here yes there is evidence in the record that he saw the turn too late to make it yet continued to try to make the turn and went off the road so that a fair statement i think the record reflects that he went off the road you're on or there's no testimony from the driver to what he saw or did not see that one of the passengers is the source of the claim that he was the turn too late mr jones yes that's for mr jones's testimony said that the term was executed too late to make it ok so if that if there is some factual basis for obscured they were they could not be seen until you were too close to it to make the turn then you stop and you either find a place to turn around or you back up your honor i guess those are possibilities  but what the evidence on the record is they came every one wing bridge and a very dark world area moving very slowly and very carefully and before anything could happen they were off the road one tire was off the edge of a world roadway there and there is no evidence that there was time to stop there is no gap in the testimony from either mr jones or mr walters that were both alert and awake in the color that evidences any negligence whatsoever there is no span of time to turn the wheel to turn to the side road then why don't you have time to stop they said he was only going what three or five miles an hour then they said it was below ten euro the exact the exact speed was was not in the record other than he was moving slowly approaching what bothers me here is  i suspect there's nobody in this courtroom that hasn't been driving along and all of a sudden realize they needed to take a turn for whatever reason and they were right on the place where they wanted to be or they were a little bit fast past it and they had to decide do i turn and maybe endanger people or do i keep going in turn around and come back we all do that on a almost a daily basis i think i agree with you but you've done that too read i did that this past week in your honor i was in a rural road and i had a tire off the edge of the roadway it was flat i turned right back on the road way this was a bad spot for it to happen of course there's things happen but the record is reflective that there is not an instant that the driver was a behaving badly that he was acting appropriately all throughout the event why isn't it a factual question as to whether he should have continued on straight because according to the to the drawing in the us it's the somebodies investigative report he could have gone straight right he would have driven both the entire vehicle into the front yard if you would have gone straight to the know it was before he made the turn it wasn't as if the road only went that way no choice the road went straight he could have gone straight to you on the road split and i'm not familiar with the exact part of the record you're referencing but just looking at this investigative report and at least on the drawing it appears as if the road went straight is that right if that's what is wrong your honor in a matter of fact and it's either it's an exhibit either mr jones or mr walters testimony there's a google earth picture there's what there's a google earth picture of the intersection that shows a so now he's here so you're saying he couldn't have gone straight back to were judge white and i were he he basically either had to stop and back up or he had a turn yes yes or no he is the the evidence shows in record shows as soon as they came of this little bridge even though he was moving very slowly and carefully the road split in egypt he could make the turn fast but counsel i mean when you have this kind of situation yes people make judgments but one that we accept that you're not supposed to drive a car when you can't see i mean that's something that a reasonable person understands general duty of care i mean your pride in a dangerous instrument you don't go when you can't see and if the fact is that he couldn't see then he really had to just st and find out who's in the farmhouse i'm sorry to bother you but we have got a truck in the dark and i don't know where i'm going or whatever it is but i don't just because he was driving slowly not at all times but your honor i would i would assert that there's nothing in the record that demonstrates he could have stopped before whenever there meet well he stopped for a moment did me never stop the car until it was over the the well presumably you can stop i mean there are certain common sense in princes presumably you could stop in on it but there's no evidence neither one of the the passengers neither one of the evan the witnesses to the accident if the if judges dismissed your routine car accident case because the person was driving raffling him till something happened earl shop right now and turn into nowhere it's just he but no one is saying that because there was an accident he did something wrong they're saying he may lead in turn w honor the plaintiff has to prove that something negligent happened in the positive evidence in the record was that there was no behavior on the part of the driver that lacked ordinary tried returned the vehicle right that's the that's in the record there was a quick steer at the last second that was unable to be made yes that's mr jones's testimony maybe this doesn't ultimately make any difference but i'm still confused because the drawing showed that he just could had to turn either right or left he couldn't go straight it is that's the what the record reflects that in the form that you're on is looking at that's a form from a third party no discovery was done on that form it was given to c s x by piece is what it is so in the opinion it said jones testified that the driver was moving at a slow speed while looking for a turnoff that blended in with the front yard and gravel adjacent to the paved road so it sounds like the paved road was going in some direction and he was leaving the paved road to go onto a gravel road that i gather want off to the left i believe mr jones is testimony that was gravel and grass and it wasn't wasn't paid was he he could he have continued on without making the turn i believe the record reflects if he would have continued straight he would have taken the entire vehicle into their front yard and you think are best placed to sort this out as google earth well your honor actually mr waters testified he couldn't pick it out on a map he could not show you where he was negligent he cannot produce without the help of c s x and deposition he couldn't produce the location of where he was hurt so he could not he could not come into a court room by himself and he doesn't like this he couldn't come into a court room by himself point out on a map i got her here in this is why that's the plaintiff's obligation to bring proof into a court room but yes that is the deposing lawyer took a picture from google earth to his deposition so that we could have a picture of the scene to get that that is the best evidence  we had presented by anybody to the district judge it was part of the it was an exhibit to the deposition john you know whether the district judge viewed it particularly i don't know you know filed depositions of federal court we do if we're going to trial deposition you're probably looking at about page four hundred of their records thank you the court was asking mr drips about the standard in the standard in feel it is simply ordinary care it is not even sure of perfect  safety the only duty a railroad has is that of ordinary care this court has said a railway breaches its duty to its employees when it fails to use ordinary care under the circumstances or fails to do what he reasonably prudent person would have done under the circumstances is ordinary care normally an issue for the jury it is but you have to have proof that there's been a breach of ordinary care in the plaintiff pays a lot of attention to some decisions but in the supreme court of this court that address causation but what there is also same with this court has repeatedly said is that negligence must be proven in order to get a feel a claim to a jury there has to be proof of breach of ordinary care in what the plaintiff has has produced here is hundreds of pages of the driver behaving completely perfectly and appropriately in the court found that so so let's assume for a second that you have a case like this where there were there simply was an accident your argument would be the mere fact of the accident doesn't establish that it happened in a negligent way and i believe this courts recognize that there is such a thing as a fault was an accident so then we look to see if there are ways in which that acts that accident could of or should have been avoided would that be fair to say i believe that's reasonable care yes and if there wasn't any way to avoid it the black ice or whatever then again there's no evidence of negligence right correct but if there was a way to avoid it stopping going the other way turning it whatever whatever it is then wouldn't that be a factual dispute about negligence i would believe that are because there's no evidence in this record of that negligence where there's no evidence in this record that the driver could have done something that would have prevented this accident all of the positive evidence that the plaintiff has produced was that  the obscured roadway came a contant came upon the driver quickly even though he was moving very slowly and appropriately we're kind of beating a dead horse here probably but sort of back for judge white was if he's driving very slowly and he's being cautiously all of which is good then at that point it seems like it's even easier than he could have just it's even more clear that he could have just stopped as opposed to driving down the highway at sixty miles an hour you encounter black ice nobody's going to say you had the option to stop before you saw before you hit that black ice you know i believe what the record reflects and what the plaintiffs evidence produces was that there wasn't time to stop that i would read it the opposite i believe the court did he was moving so slowly that even though he was he was had to be moving because he was moving that when the roadway appeared there wasn't time to avoid leaving the roadway so you think we didn't make a turn your honor the only evidence on that is that mr john said that there was a quick steer at the last moment in the rye front tire left the roadway that in the vehicle stopped there that that's how that's mr jones's test and the variables stopped it didn't go down no only the right front tire left the roadway that's how slowly he was moving so that's that's that's how quickly he stopped the vehicle i thought it was stopped by a cement wall well he can't it did come to rest i mean it could have kept and that the district judge i'd forgotten does cite kentucky one hundred nine point two ninety which states the operator of any vehicle upon a highway show operate the vehicle on a careful manner with regard to the safety and convenience of pedestrians and other vehicles on the highway i guess that's the kentucky statute that that they're saying he violated right man the answer your own that was in his owner picked up on it he did not find any negligence understand that but that at least that's allegedly where the duty arises here that's where the plaintiff said the duty arise below it is not mentioned that's what we're trying to figure out before where the duty arise and that's mentioned in our brief and it is it is the a apple or the appellant's priests are silent on that issue on appeal but but that was and i recognize there was an early attempt to mediate this case and also that you will prevail with mr court on summary judgment but in view of the panel's question today do you think that mediation might have some usefulness at this  point i do not believe so i believe the the the lead situation is in such a posture that it's going to be unable financially to reach one we have to we tried it both sides tried very well in good party involvement heard impairs mediation if it's part of the collective bargaining agreement then engineering employees if there are injured and vehicles that are not on the train tracks they get wage payments so he has received the district court's order recognized that the driver of the vehicle was unable to see the turn in time there is nothing in the record that suggests that the driver could not stop get out look around go back the way he had come he was able to negotiate that area as far as he got in safety and what do you say was the configuration of this turn at one point when we got a drawing that says you could go forward barely that's not right and then it then the then it was a claim the road split that doesn't seem to be right then it was a claim that if you kept going straight you'd end up in the front yard anyway so rude veers slightly ok so if technically i  can't say he's incorrect that if you go straight you wind up in the yard but the road the world doesn't end it just simply viewers and then there's a turn off and on the road that took him up to the transfer point yes or the gravel road where he went off the the gravel was a turn off road so if you didn't turn off where would you go you would keep going and where the road where the road terminates ultimately but not at that point as the road go if you didn't if you didn't make it successfully make bill that if you if you go over the bridge you decide you're not going to go down that gravel road that goes to the left where where would you go straight right if you kind of veer to the right hard i think part of the problem is that the google earth photo he's referencing was not made part of the plaintiff's deposition the only photographic exhibit that's part of the depo is a photo of the van so i brought that so there would be clarity here and it's much cleaner fault as it is the defendant so i think it's clear that if this were a common law case there's no doubt it would go to a jury it's a common law cases i well it's under the federal employer's liability act the van driver uses federal common law i'm sure but under the statute  stopped the plaintiff said that in his testimony and didn't and if he didn't know where he was going he should have stopped looked around rather than proceeded so for those reasons we're think that sure if you know i'm just i'll be as practical as possible about it your honor is the plaintiff waves his wage loss claim the railroads not entitled to a set off a statutory set off provision and you know i mean we can discuss that mediation but to say that that's an absolute in settlement to the parties resolving things i think is und