directed to apply federal substantive law to the factions of chances to it the most recent review of the status of of the substance of law relative to these types of issues of notice defect depression and even i'm assuming to this day no one's ever seen that's correct a question about well how does that affect the foreseeability i mean how can you be charged before seeing before this incident happened that the area of the yard where this incident occurred was prone to accumulate water flood and they had conditions that have been reported to them by members of  working crews and they are and by a union representative who actually visited the site with the management of the railroad and pointed out defects in the walkway surfaces and defects in the road surfaces for the rails mr schultz pointed out in his testimony that for over a year if the railroad was having problems with rails braking in the southern part of th they would in herds of cold weather in the sewers in the summer december eighteenth the freezing and falling mechanism that takes place in cold weather were to cause the ground to shift or move and create right and then sure you're right in the end the problems with the yard which i think everyone would agree there were problems with the yard but if you can't show that this alleged defect actually existed happy in your tribute  dictated that there was no way for him to know that that's going to happen and he didn't think anyone would be able to tell that the holes in the spikes for him had gotten warmer than they should have to allow for th her judge caribbean or brady in that cage indicated that because there was also testimony that the tires themselves appear to be the fact of war i have problems over the past and we're not attentive to that it was reasonable for the case to go to the jury and love the jury the charm and whether it was foreseeable that these high places could have come whoosh because of the condition of the t in that case the actual mechanism for pausing the the effect was invisible but because of the circumstances and the conditions in the south of the oliver in time of the action that the court  protection against snow and ice and make sure that the walkway sure sins are free from any defects or ice and snow so they have to clear the snow away from the road your work railroad liable i believe it can and i believe the war would require them to address that if they have the also need to do so so they have to plow a railroad yard for four inches of snow before they can let their workers walk upon it if it can be foreseen that workers are going to work in a particular area and that area is rendered has responded snow or some other condition yes they must address that but they don't have to clear the whole your they don't expect that workers are going to be a hoarder of the reason that in this particular instance mr runnels was at the location where he was is that a rail head broken because of what we believe were the conditions of the our preexisting this incident and he was there with the maintenance of way director depending on the amount of snow they might have to plow but if there's snow that can be resolved or taken care of by means of salt or sand or some other mechanism yes they're obligated to provide a reasonably safe place for some of their the duty is to be reasonable in what they're doing whether that means they have to follow whether that means they should salter sam it will depend on one's interpretation of reasonable but our position is that's for the jury to determine what hole or are they just took pictures of the area work or what is it that they didn't go to look for the hole without it taking a picture of an area how far away are you from it was this is along this th it seems to me if i thought i crept over something there was a defect someplace a hole bad curb or whatever we got into i'm going back to take a picture from the evidence before the court is there any reason to believe that he's tripped on anything other than slipped on snow well he doesn't describe slipping got she tried stepping and felt his foot shift because of a defect or a trips allegedly in a hole where they could claim that afterwards they had about forty understand but the roach should not be allowed to hide under the blanket of snow on the railroad didn't take any steps to verify or not verify what was reported to them mr runnels did in fact report that he stepped in what he thought was a defect or a hole in his action report after he had completed ship and apparently the railroad conducted no investigations as to whether there was or was not a whole we do know that for at least a year before this incident reports were being made for me area of the yard where this incident occurred that the faction oppressions and halls were deficiencies that what was asked was that they resurface the walk surface to make it level and oprah to walk on without having any changes in polls are that the the crux of this case for your honour's is the fact that these conditions were created by the an activity of the road to resolve because of the rules and activity to resolve those conditions this requires that the court to allow the current to the term and whether the steps taken by the road or appropriate or not whether they are reasonable or not and the jury should be allowed to determine whether it was foreseeable that an entry of this  conditions may have been how long they may exist in this case in addition to mr runnels testimony about what he perceived to be the condition of the guard underneath the snow the conditions describes this he was aware of these conditions in the yard and that the railroad took absolutely no steps in the year leading up to this incident to correct those problems or deficiencies at all they allowed this condition expose their workers to the hazards that were known to exist because of these conditions and now they wish to hide behind this one pretty much no i agree with what you just said but that doesn't really answer the question about what exactly defect cause your client to  of that defect in the one square the sidewalk that went bad how can you say it's not like it was unknown the location where this happened that was clearly if so it was a defect ever found in that location i don't believe it was ever looked for after the fact we believe that defects in that precise location and that area around the twelve thirteen switch existed prior to this and were reported to the where the room took no steps to resolve those defect at all nothing and that gets us to the concept of and this is that this is something that you can go way over god but he says that he didn't slip he did not trip he says that yes he stopped his he turns not even venture to work i can't conceive that he was injured or people have do all sorts of things that they might not even be aware of well let's say because they engage in an activity a normal everyday activity they can have symptoms but so i think and of course it's happier rose burden to prove what it is that causes his injury in this case we rely upon what the report and railroad because of the very issues that were here on the day lack of notice lack of construction constructive notice or actual saw basically what we have here and the trial ju evidence from this record that he's asking you to review he's asking you to review does lawrenson say that judge lawrence was somehow a mistake then in grabbing this summary judgment the questions that you've all work that's that's the beauty that's defined by the law in this case of course it is because there's snow on the ground a railroad operates as you can imagine thousands of miles of track throughout the country all that i'll bore with the exception of where it's one that's inside a building they have the where three hundred sixty five days it is here and all sorts of weather conditions so the mere fact that there's snow on the ground or ice on the ground wor raining those are not conditions that set forth something different duty to the union pacific railroad if if there is a condition known to union pacific railroad for example we have afforded in this in an area yes and we're aware of that we we would have to learn our employees or maybe stop traffic in that area but that's not what we have here the mere fact that there's snow on the ground is not record any evidence whatsoever of any hole that ever existed in this location where he claims to follow excuse me he didn't say wery claims to a step this that and twisted move the snow they didn't make any attempt to look underneath the blanket of snow to see what was there they relied upon the blanket of snow to hide and they persisted in that in about what happened to him they did nothing to verify or disprove what he reported that nothing it went to the same thing that he had done these these men and women on the road are not allowed to go conducting there's no evidence to that effect mr ruggles never returned to the property after the state i don't know what the railroad may have done or not done after the day of this incident but they didn't produce anything to us that showed us the condition of this particular the conditions of the yards and properties were and whether there were conditions that needed to be a grouch when he investigated claims he's the only one that testified about the mechanism of what happened to him no one else testimony that corroborates the potential for this condition exists in repose of the preexisting conditions in the our allows this case to be considered by a jury and not by the trial  would respect judge warren's obviously i thought that those large would reconsider his decision when i went back to him but i don't think those warrants really appreciative of the fact that there is a concept like act of negligence that would require