Warren E. Burger: We'll hear arguments next in 72-5794, Davis against Alaska. Mr. Wagstaff, you may proceed whenever you are ready.
Robert H. Wagstaff: Mr. Chief Justice and may it please the Court. The issue presented to the Court in this case is the virtual confrontation of the Confrontation Clause of the Sixth Amendment against a state statute and court rule which provides that juvenile record shall remain secret and anonymous in virtually all cases, save when the juvenile is being sentenced as an adult and the court in its discretion feels that the juvenile record would be relevant or desirable. In this particular case, the statute and court rule was applied when a juvenile was testifying for the prosecution as a chief identification witness against the accused, petitioner Davis. Now we sought at trial to use this -- his juvenile record, not simply to impeach his character with prior wrongful acts, but rather to show that he had biased, prejudiced and was testifying out of fear and favor when he identified petitioner Joshua Davis at trial. The court's protective order or the court entered a protective order, the trial Court did, during the voir dire examination for the jurors and at that time, the issues were fully raised or actually presented in our briefs today. The confrontation issue was argued to the Trial Court. There has here been a significant diminution of cross-examination and this calls into question integrity of the whole fact-finding process and requires that the competing interest be closely examined. The facts of the Davis case really bespeak the legal issues raised. A safe was found on some property next to a truck, approximately 25 miles from North of Anchorage, Alaska. The stepson of the owner of this property, owned this particular truck and was on a probation for burglary as a juvenile. He had committed acts which should he have been an adult would be burglary. He had been adjudicated a juvenile delinquent and was under probation at that time to the Juvenile Court, he was sixteen years of age and lived on this particular property.
Warren E. Burger: Was that his only collision with the law?
Robert H. Wagstaff: To our knowledge, we never actually were provided with the record at that time, but the respondent has admitted in essence what I have just related to the Court in their particular brief, we don't believe that's at issue. We desired to bring this fact out to the jury in order to show that this witness was initially afraid that he was going to be linked into a burglary charge himself because this witness turned out to be the key critical identification witness and indeed the one essential witness had trialled against Joshua Davis. The story that Mr. Green, the boy Green gave to the police officers when they came up to investigate the situation was that earlier in the day he had been walking in the area where the safe was found and observed two black men to be standing near a recent, a late-model Chevrolet automobile metallic in color. He said that he talked to them briefly and asked what they were doing there and he asked they had any trouble and they related that they just said something to him, “Is your father here?” He progressed. He said no. He progressed and came back later and stated that he observed these two men on same position, one with a crowbar. He stated that he probably could identify them. The next day Green was taken down to the police station in Anchorage and apparently coercive environment to begin with, coupled with this, he was taken into a small room in the presence of four detectives, seated between the two chief -- the two actual investigating officers, one of them was packaging pistols apparently in connection with another case and given either five or six photographs and asked to see if he could identify one or both of the persons that he claimed to have seen standing where this safe was found. Now at this particular point in time, our theory of the case and the one that we were precluded from presenting to the jury was that Green was under a lot of pressure then to identify someone else. He in his own mind if not actually was a suspect of this burglary and was under strong impetus to in fact pick someone out of these photographs in order to take the heat off of himself. Again, the jury was not aware of these circumstances. He did in fact take a picture out, one of which was the picture of Joshua Davis. There was a subsequent line up and then an identification at trial. Our point is that when this initial photographic identification was made, Green was then and from that point forward locked into this identification and this was the critical point in time when the identification --
Warren E. Burger: Before you leave that police station situation, I noticed on page 34 that you were referring to earlier, there was a general question in the course of the trial. Had you -- this is addressed to Green, had you been questioned like that before by any law enforcement officer? I would assume for the moment at least that that was some kind of an effort to perhaps lay grounds for impeaching him and he answered no, when in fact as we now know on the total record, if he had been involved as a juvenile and was on probation, he must have been at some time interrogated by police officers in the past.
Robert H. Wagstaff: That's correct, Mr. Chief Justice.
Warren E. Burger: Did you pursue that by way of any impeachment at a later point?
Robert H. Wagstaff: In the trial?
Warren E. Burger: Yes.
Robert H. Wagstaff: No, I did not. An objection was made at that time when I asked that question. There was a negative response. That objection was incomplete, attempting to raise in the jury's mind and the court said simply I'll sustain the objection and at that point I believe that the court and the record reflects was referring to its prior protective order that we couldn't get into that particular area. Respondent attempts to limit the meaning of that question with the words like that. I think when the question is read in conjunction with the prior questions which was and then you went into the investigating room with Investigator Gray and Investigator Weaver, yeah, and they started asking you questions about the incident, is that correct? Yeah. Have you ever been questioned like that before by any law enforcement officers? The answer was no. Again, we feel that this answer itself was -- must have been untruthful and we were precluded from showing this to the jury. Also we not only were prohibited from cross-examining Green on this point, but the police investigators as well with respect to particular pressures they may have put on Green at the time of the initial photographic identification. Particularly Investigator Gray was asked, did you at any time suspect Green to be involved in this burglary? He responded no. Cross-examination at that point was precluded on how is your negative response consistent with your knowledge that he in fact was a juvenile on probation for burglary. The safe was found on his land next to his truck. Again that question was precluded. The prosecution at trial made the most of their protective order. The jury was in essence given a distorted view of exactly what Green was and who he was. The protective order of course came during the voir dire examination, so any mention of the problem, the juvenile record would not come before the jury. In closing the argument, the prosecution stated that the petitioner's entire defense, which -- our entire defense was that the Green's identification was unreliable, that he was under pressure. We tried to show just by the fact that he was -- the safe was found on his property next to his truck that he would be under pressure. That was our defense, this was developed an opening statement throughout the trial and closing argument. The prosecution in the closing argument claimed that this was a total red herring issue, one that we had just made up and that there is no basis for this belief. He also said and I am referring to pages 422 and 424 of the transcript that our defense of bias and prejudice in fear and favor on part of Green came as a result of pure suspicion of society and suspicion of law enforcement officers. Of course, the prosecutor must have known in his own mind, at least, the origins of our attack on witness Green's credibility and any bias or any fear and favor he had in testifying, that came from other independent sources than that. As a result of Green's identification at the station house, his search warrant was obtained for the car belonging to petitioner Joshua Davis. A search was made of records of rental car agencies, the police suspected because of the description of the car, maybe it is a rental car. They found the car rented to petitioner, obtained a search warrant for the premises, his house and also vehicle. As a result of this search, they found evidence inferentially relating petitioner's car to being present perhaps at the scene or actually with having had a safe, perhaps, in the trunk of the rented car at one time as to extent of the other evidence presented against petitioner at trial. The actual evidence in the trunk of the car were insulation fibers that could have come from a safe and paint chips that could have come from the safe. This was the extent of the identification of these particular substances. There was no -- there were no fibers or paint chips found on petitioner's clothing or on shoes or nor was the money found that was allegedly in the safe. None of the things that the search warrant basically was seeking were ever found, just these small items of evidence. This is important, of course, to lead to the significance of Green's identification, the crucial nature, the essential nature of his testimony. Its essential nature, I do not believe is actually in dispute. It was admitted at trial during the motion for a protective order described as essential witness with that very word. Also, the Alaska Supreme Court in their opinion described him as an essential witness, that the case could not have been made without him. The trial judge ruled on the issue, on the basis strictly of the state statute and the rule involved. He initially was inclined to rule in our favor as the record reflects and stated when he reversed himself that he really didn't agree with what he was doing, but he felt constrained to do so by a specific court rule in Alaska and which is cited, of course, he is doing--
Thurgood Marshall: Of course Joshua Davis had a juvenile record with that, would you allow that to go with it?
Robert H. Wagstaff: His juvenile record?
Thurgood Marshall: I said suppose that he did have one, would you allow that to go with it?
Robert H. Wagstaff: Absolutely not. His record would not be, he did not testify for one thing, but assuming that if he had testified then the state statute would have prohibited and the rule prohibited from being used against him in a subsequent criminal prosecution as it should be.
Thurgood Marshall: The difference is what?
Robert H. Wagstaff: The different is what? Well, in this case, that Green was not being accused of anything, the record was not sought to be used against him strictly. It was sought to be used to impeach his credibility, not even necessarily to attack his character, but that he was testifying under fear and favor and if there is any conflict between that particular state law and rule in the Sixth Amendment, then the statute and rule must exceed to the Sixth Amendment, the Confrontation Clause.
Byron R. White: You said -- did you say, you wanted to use the record to impeach his credibility?
Robert H. Wagstaff: Green's credibility, yes, and to show that he --
Byron R. White: What did the Alaska Supreme Court mean when it said that Davis' claim is not to be interested in impeaching the juvenile, but rather desire to show bias, prejudice or motive and that the witness was under pressure to shift suspicion from himself to another, is that a current reflection of what you wanted to --?
Robert H. Wagstaff: Yes it is. We are talking about impeachment and credibility.
Byron R. White: He just was interested in introducing the record to show that he had a criminal record and he might not be reliable or truthful?
Robert H. Wagstaff: No, we weren't using it under the state rule of evidence which provides that impeachment of character may come about by showing a specific bad action and we weren't attempting to do that.
Byron R. White: That kind of impeachment goes to sort of a general attack on credibility?
Warren E. Burger: On character.
Robert H. Wagstaff: The distinction that I would make is that would be an attack on the witness's character. In this case, we wanted to make a specific attack on his credibility to show bias and prejudice.
Byron R. White: But just for the limited purpose of showing bias, prejudice or motive in the sense that he had some special reason for cooperating with the police?
Robert H. Wagstaff: Yes.
Byron R. White: Because he was on probation?
Robert H. Wagstaff: Yes. That -- there would be two parts to what his special motive for the identification would be. The first part would be to take the pressure off himself when he made that initial identification shortly after the safe was discovered on his property next to his trunk, that he was very anxious to do that, that the investigation be turned away from him, at least, as he thought in his own mind, and secondly, that he would have impetus to testify just by virtue of the fact that he was on probation and would somehow hope --
Byron R. White: But if any of you had a more limited reason for wanting to enter -- to use the record then you might have had?
Robert H. Wagstaff: No, I don't think I understand your question, Justice White.
Byron R. White: Well, the appellant -- he claims not to be interested in impeaching the juvenile. Now, we put that aside whatever it is, you are left with something that is less than --
Robert H. Wagstaff: I have tried to cover that somewhat in my reply brief that when the term impeachment and the term attack on credibility have been used somewhat interchangeably and I tried to distinguish them at least for purposes of my argument in the cases that I have cited in support of our position also make that distinction.
Byron R. White: The reason I was interested in this is the Alaska, the state Supreme Court seem to say that with respect to this limited reason for wanting to use the juvenile record that that reason was amply satisfied by this scope of cross-examination which was allowed.
Robert H. Wagstaff: I don't think that the Alaska Supreme Court was limiting themselves to strictly impeachment in the terms of the particular civil rule. I think, they were talking about a general impeachment attack and I think that to define under two subheadings, under the word impeachment, attack against character and attack against credibility. The case --
Warren E. Burger: How do you separate those two? I confess that I could not understand what the Supreme Court opinion meant when they said that you were not attacking impeachment but whatever name you will call it, if you try to underline the jury's acceptance of the testimony given, it is impeachment, is it not?
Robert H. Wagstaff: I agree with that completely Mr. Chief Justice. I think what report must have made was using -- they're using the term impeachment as a word of art, particularly, and I cited it in the first part of my brief under Alaska Civil Rule 43. It talks about impeachment by an adverse party and then it goes on that a party may not be impeached by evidence of wrong, particular wrongful acts except that it maybe shown by the examination of the witness or the record of a judgment that he has been convicted of a crime. I think that's what the court was talking about then. We weren't attempting to do that, although, as I've argued in my brief I think that that even should be allowed and let the jury determine the particular significance.
Warren E. Burger: Well, maybe that you weren't quite pushing for that in the state --
Robert H. Wagstaff: I wasn't pushing for that and we aren't pushing for that now because it's not necessary in this case, but I think it should be.
Byron R. White: Because it would be that you could use a prior criminal record for impeachment for a purpose that is wholly aside showing bias.
Robert H. Wagstaff: Yes, that simply this person is a bad person.
Byron R. White: Yeah, and he may not be truthful?
Robert H. Wagstaff: Yes.
Potter Stewart: Excuse me?
William H. Rehnquist: And it might be that a jurisdiction such as Alaska might wholly abolish the rule that permits impeachment simply by showing a prior conviction and I take it your argument doesn't go to any such general abolishment?
Robert H. Wagstaff: No, it does not and of course there is a perceptible trend in that direction, but we were not limiting, we were not offering it solely for that purpose and actually that was the secondary purpose. The primary purpose was to show that this witness in his own mind, by virtue of the fact that he was on probation for burglary would feel that he was a suspect.
William H. Rehnquist: You might have had the situation for showing that if he were simply charged as a juvenile and not even finally adjudicated?
Robert H. Wagstaff: That's correct. It could be -- his mind is what is critical and the jury should be allowed to determine what factors were present in his mind, what pressures he would feel. We relied very heavily on of course two cases where this is discussed greatly off a case in Smith versus Illinois and I think those cases are directly applicable here.
Potter Stewart: As I read the opinion of Chief Justice Boney and that part appearing on 59A of the appendix, he was simply describing your argument. He says that you recognize that the majority of the case law is against you, so far as cross-examining a juvenile prosecution witness goes, in order generally to impeach him and that therefore you are trying to take your case out of this general rule and show that you have very special reasons, special circumstances to do it here and particularly in the light of his footnote point on that page. Now you know what you argued to the Alaska Supreme Court, I don't, but this seems to be a reflection of the argument you made, that you are not under the general rule, you are under the exception rule.
Robert H. Wagstaff: That's correct.
Potter Stewart: Because of the special circumstances in your case --
Robert H. Wagstaff: That's correct.
Potter Stewart: -- of this particular witness having been found delinquent by reason of larceny and of this stolen safe having been found next to his trunk and therefore that he was under some particular reason to testify against your client, that that wasn't just a case of general impeachment, that's what I understand, is that my --
Robert H. Wagstaff: That's correct.
Potter Stewart: One has read it?
Robert H. Wagstaff: No, I think that's absolutely correct Justice Stewart.
Potter Stewart: And the court went on to think that if that was your purpose, at least their view of the evidence was and at the cross-examination that you had ample opportunity to satisfy that purpose, within the cross-examination that you were allowed?
Robert H. Wagstaff: That's correct.
Potter Stewart: That's what they say?
Robert H. Wagstaff: That's what they found, but, of course, the questions that were permitted were only self-serving general questions such as did you feel you are under pressure Mr. Green, do you feel you might be a suspect? Questions like this which he answered negatively, which he would --
William H. Rehnquist: Nothing in the trial court's ruling prevented you from going into the fact that the safe was found on his property and that he had some relationship with the owner of the truck, and you were perfectly free to follow up that as you chose?
Robert H. Wagstaff: Yes, but that's the extent of it. We could not bring it home to the juries as the Chief Justice Rabinowitz points out in his dissent, the pressures that Green must have had felt in his own mind and when he denied that he felt these pressures and when he denied that he had ever been questioned by a police officer before. These were questions that were ripe for exposure and cross-examination that the witness either had a very bad memory or was lying or whatever other reasons can be expressed.
William H. Rehnquist: Couldn't you under Alaska practice had moved to have his no answer to your question whether he had ever been questioned by a police officer stricken since the trial judge sustained an objection to the question?
Robert H. Wagstaff: It was not my objection. It was -- I think, the demotion would have been made -- that motion to strike would have been made by the person making the objection, the prosecutor. I think that the normal trial practice is let the answer stand, it's been made. I would like to reserve the rest for rebuttal.
Thurgood Marshall: Mr. Wagstaff, can I ask you (Inaudible)
Robert H. Wagstaff: Well, I didn't know was of course.
Thurgood Marshall: You wouldn't bound by it?
Robert H. Wagstaff: You know I would be bound by --
Thurgood Marshall: (Inaudible)
Robert H. Wagstaff: Yes, the order, protective order --
Thurgood Marshall: It was outstanding and yet you asked that question that you got the answer no, but you were stuck with it, because of you asking the question?
Robert H. Wagstaff: That's correct.
Warren E. Burger: Mr. Merriner.
Charles M. Merriner: Mr. Chief Justice and may it please the Court. As I read this Court's confrontation cases in determining the damage that has been done to the integrity of the fact-finding process, I see that the focus is on two things. One is the cruciality of the un-confronted testimony and the other is that this Court likes to see just how mislead the fact-finder has been by not hearing the confrontation that has been denied. And I must concede that Richard Green's testimony was crucial to the state's case against Joshua Davis. My argument is that the jury was not significantly mislead by the denial of cross-examination, by not having heard about the juvenile record and by not hearing cross-examination in this area.
William J. Brennan, Jr.: Is that a harmless error?
Charles M. Merriner: No, Your Honor. My argument is that the testimony was reliable enough that the jurors were authorized to hear it, even though they did not hear these facts that impeached the testimony and they did not hear cross-examination in that area. In determining just how mislead the jurors were, I would like to emphasize here at the outset that Richard Green was on the stand, he was immediately cross-examined, in all areas except this one. He was under oath. The jury was able to observe this man's demeanor as he testified and although Mr. Wagstaff could not cross-examine him in this one area, he was able to bring out questions concerning whether or not this person thought himself to be under suspicion and therefore, whether or not he had a motive to quickly identify somebody else or to fabricate his story in order to help himself in some way.
Warren E. Burger: Mr. Merriner, we now know, do we not, that on page 34 he did answer one question falsely? Whether it was --
Charles M. Merriner: I would dispute that Your Honor and --
Warren E. Burger: You mean that it was a false answer?
Charles M. Merriner: Yes, Your Honor.
Warren E. Burger: What do you think it was?
Charles M. Merriner: Mr. Chief Justice I pointed out in footnote 3 on my brief, it's on page 13 that this response was not untruthful because this inquiry referred to being questioned as a prospective witness and not as a prospective accused. The words were, have you ever been questioned like that before? This man was a witness and he was not a prospective accused. We don't know whether or not the police officers questioned him at all when he was picked up for his juvenile violation.
Warren E. Burger: Well, isn't that then if that extraordinary, very extraordinary suggestion that you make were possibly true that they didn't question him, isn't that something that might appropriately been the scope of further examination?
Charles M. Merriner: Yes, Mr. Chief Justice. Now, I submit to this Court that when this question was answered in this way, if Mr. Wagstaff had thought here that there was perjury involved, he could have asked for the jury to be excused, could have gone into this further, but there was an objection of Mr. Ripley, the prosecuting attorney said, I am going to object to this, Your Honor. It's a carry on with rehash of the same thing. He is attempting to the raise in the jury's mind. Court simply said, I will sustain the objection. Mr. Wagstaff at that time could have made an offer of proof, an offer of proof that perjury had been committed. And if he could have shown that, then I would think that the Court would have had to have allowed in this juvenile record, because if you have got perjury on the stand, certainly, the defense counsel should be able to impeach with whatever means is necessary to bring out the fact that there has been perjury on the stand. As the record now stands and he has never raised this. In his brief he simply says in this one statement, counsel asked if he had ever been questioned before by law enforcement officers? His answer was, no. And he doesn't say in there, just show that the man purged himself, the implications raised, of course, and that's the reason I have put in my footnote 3, but as to final draw --
William J. Brennan, Jr.: In the face of your -- that Rule 23, you suggest that in the circumstances that you oscillate that you might have got the criminal record in?
Charles M. Merriner: Yes.
William J. Brennan, Jr.: Well, that would certainly be contrary to the prohibition of the Rule 23, wouldn't it?
Charles M. Merriner: Oh, yes, but of course, a rule cannot stand if it's unconstitutional for its application, to be -- for it to be applied and there is another rule in the Alaska Criminal Rules, Rule 57 which says that in the interest of justice, we can't dispense with any of the foregoing rules. The rule would I submit have had to have been abandoned at that point, if during the offer of proof, it had come out that Richard Green had perjured himself by the statement, then I would think that defense counsel would have been able to bring out the juvenile record at that point or his right to confront the witnesses against him would be denied. But Mr. Wagstaff in getting off this point, was able to question closely about whether or not Richard Green considered himself under suspicion. And as the Alaska Supreme Court stressed, the jury was able to observe his demeanor while he was being questioned this way. The facts that work out from the jurors did somewhat impeach Richard Green's testimony the fact that he had been convicted of a crime, did somewhat impugn his credibility that's being a larcenous type crime, a burglary of two cabins. The fact that he was on probation showed that he had somewhat of a motive to quickly identify somebody else to hoist the blame onto someone else to take the suspicion that he felt was on himself or perhaps even to fabricate his story in order to aid himself in the eyes of the law enforcement people he had to deal with. But, these facts are not that impeaching in themselves. As for the argument that the conviction it show -- itself impeaches his credibility in the sense that this was a larcenous type crime. Mr. Wagstaff is not relying much upon this argument. As Mr. Justice White was bringing out, the Alaska Supreme Court, indicated in the opinion that this was not Mr. Wagstaff's main argument that it should have been brought in as a conviction itself to impeach credibility. He has a further argument, that is, that there was a motive here because of the probation. Mr. Justice Rehnquist mentioned the possibility of totally abolishing for any witness, the use of prior records. Now in February this year, Alaska -- the Alaska Supreme Court did promulgate a rule, that says you cannot use for any witness, any criminal conviction if it is over five years old. I can see problems there. If there is a perjury conviction and that's six years old in the state's witness as the perjury conviction behind him, is a crucial witness. I can definitely see there are problems that the defense counsel would be denied his right to confront, if he could not answer a question.
William H. Rehnquist: Well, you then treat the right to confront not mainly the right to cross-examine generally, but the right to cross-examine about any subject that the defense counsel chooses?
Charles M. Merriner: If by not being allowed to go into this area, the jury is rather greatly misled about the reliability of his testimony, that testimony is crucial, yes.
William H. Rehnquist: Well, what if the state recognizes a husband-wife marital communication privilege and that privilege is claimed by a witness on the stand as being cross-examined by defense counsel, do you think that the state court has to abolish that in the interest of confrontation?
Charles M. Merriner: Well, I know in Washington v. Texas, this Court stressed the fact that they were no way indicating that these privileges were being questioned. But I could see the possibility of the defense knowing about some communication made to a husband, wife is on the stand, crucial state's witness. Some communication that you know, she tells him, I am going to get up on the stand and lie and I can see there that if the state just went ahead and applied the rule without any much consideration about, I can see that the denial of confrontation wouldn't exist --
William H. Rehnquist: Well, have any of our cases ever gone there far?
Charles M. Merriner: No, Mr. Justice--
William H. Rehnquist: Well, you are arguing for the state, aren't you?
Charles M. Merriner: Yes, but I am arguing here that the focus should be -- the test should on the cruciality of the testimony to just how misled were the jurors. Now, this test will apply to any fact situation or apply to any privilege his equity of privilege whatever and it maybe that all rules in some situations would have to fall.
Harry A. Blackmun: Of course, the prosecution always has the privilege in not raising the rule?
Charles M. Merriner: Yes, assuming the court does not on its own do so. Now, as to the impeaching quality of the fact that Richard Green was on probation. The record contains no indication that he stood to gain anything significant at all by his actions. The record contains no indication that he in anyway was involved in that burglary that he stood to separate probation obligation.
Warren E. Burger: Well, of course, have there been the usual scope of cross-examination, we might have a record that would disclose some reasons that we can now only speculate about?
Charles M. Merriner: Yes, but in light of how impeaching these facts were generally, which I have submit are not that impeaching and in light of the extensive corroboration of this man's testimony, it seems apparent that any further cross-examination into this area would not have raised any hidden doubts in the jurors' minds, doubts that are not present in this record. This extensive corroboration shows that his testimony would not have cracked under further examination.
Thurgood Marshall: How in the world can you say that? Suppose he asked the question did the police officer say that, look, you are under probation, you are under this and you are under that, you have committed a crime exactly like this and that's one you were convicted for and it is either you or who else? You mean, that wouldn't help?
Charles M. Merriner: Let me go into just how corroborative this testimony was and I think that when you realize just how corroborated it was, then you will see that by asking these further questions, that testimony would not have been changed.
Thurgood Marshall: Well, I have great difficulty in being able to take a very careful pair of calipers in find out what goes through a juror's mind. That will (Inaudible)
Charles M. Merriner: In these confrontation cases, that's the question that has to be asked, just what would the jurors have thought. The test is what the average juror would have thought, an average (Inaudible) brings up, but that is the question has to be asked. Now the confrontation --
Thurgood Marshall: Do I know what the average juror In Anchorage Alaska would think? You may assume I have never been there, except the going through on the plane.
Charles M. Merriner: It's even colder than this up then.[Laughter] But, if we look at just how corroborated his testimony was, we'll see that these hidden doubts would not have been raised by further examination, any significant hidden doubt. Now, perhaps most importantly, there was a story given to the trooper on the very day that the burglary occurred on the very day that the safe was found out at his stepfather's property. And he said I saw these two men beside a late model, metallic blue, Chevrolet Sedan. The very next day he went down to police station. He picked out, out of six pictures, and I believe the record will show that, I know will show that the Alaska Supreme Court opinion is wrong in that respect, there were six pictures. They are identified in the record, exhibits 25-30 I believe. He picked out and also the Alaska Supreme Court opinion is wrong when it says, he picked two pictures, he picked out one picture, the record will show. So he picked out of six pictures, the picture of the petitioner. He was able to do this even though it was ten years old. He did not show the petitioner with a mustache in the picture. Although at the scene of the burglary he had a mustache at the lineup, two days after the photo lineup he had a mustache and two days after the photo identification there was a Capoeira lineup. He again picked the man out, out of a group of seven men. He picked two men at that time, one as representing the other man. So he picked Joshua Davis, and as it turned out the evidence was that Joshua Davis had rented a late model of 1969, burglary having occurred in February of 1970, metallic blue, Chevrolet Impala. At this point, maybe I should mention that Mr. Wagstaff contends that there was a coercive atmosphere there. Yet, there really is nothing in record, that shows there wasn't anything suggestive about the photo identification, nothing at all. He was in a room down at the police station true, but there is evidence in the record that no indication was made during the pick out of such and such a picture. His testimony to that affect is none to the contrary. Nothing at all on the record showing that the photo identification was suggestive. There is lots of evidence about how this lineup was conducted, again nothing, the Capoeira (ph) lineup, nothing indicated, that wasn't anyway suggested. Now, not only did he rent the car that was described, but the police developed evidence or discovered evidence that on the day of the burglary, shortly afternoon, Joshua Davis extended the rental contract by paying from a large roll of bills, $50, and two rolls of quarter. And the story that Richard Green had given was that he had seen these men out there shortly before noon. Also, in the trunk of the car there were paint chips and fibers, found that, I submit, virtually conclusively show that that safe was in that trunk. Now --
Warren E. Burger: Well, then are you, are you really not so getting pretty close if not on a harmless error argument here?
Charles M. Merriner: No, Mr. Chief Justice. When you look at the harmless error argument, you look at whether or not the jury would have been swayed to vote differently, if it had heard this evidence. Now I have just given you some evidence that the jury hasn't even heard, that is, the contract extension. Jury never heard about that. I submit that the test is whether or not this evidence was reliable, viewing all that we know about this testimony, you know, all we know, was it reliable enough so that this jury was given reliable testimony was not misled as to this testimony, so that an innocent man was not convicted. It is not an harmless error argument as such and that you do look at other evidences, aside from what the record contains, not that the jury heard. Mr. Wagstaff says that all that the paint chips and fibers showed was that, a safe could have been in the safe. The FBI agent told about performing a microchemical analysis on the fibers and he said that he had never found this particular composition materials in the fibers anywhere within safes. He compared the fibers from the safe with the fibers in the trunk, he said they matched. He said that just by looking at the fibers in the trunk, he could almost conclude for sure that they came from a Mosler safe, this was a Mosler safe, and you have the paint. There were three layers of paint. Again a microchemical analysis on each layer was the same. The evidence virtually shows beyond any doubt that that trunk did contain that safe at one time. Also, Richard Green, when he first told the story to the trooper, said that the man he talked with, whom he later identified as Joshua Davis, who was wearing a brown or black mackinaw jacket. When the safe was later examined, there was found to be of little reddish brown material on one of the rough edges where it had been broken into. Joshua Davis's description is given by Richard Green did not vary from his actual description and as to the tires in the reply brief, Mr. Wagstaff said that I unduly relied upon the evidence concerning the tires. There were two sets of tire tracks out there, and one set of tire tracks went up to where the safe was found. There had been a snow two or three days earlier. These were the only tire tracks there. The officer investigator Gray testified that he examined the two sets of tire tracks, both appeared to be made by snow tires. The two tracks had been made by different vehicles and then when he was asked by Mr. Wagstaff, at questioning, he said the snow tires on the rear of the vehicle appeared to be the same and he met there and it was clear from the questioning, appear to be the same on these tracks that led up to the place where the safe was dumped off, as the tires on the back of the vehicle. So you have all this corroboration. The other fact that he was on the stand and the jury was able to observe his demeanor, he was under oath to the extent that he was cross-examined and his testimony contained sufficient indicia of reliability to justify the jury having heard this testimony even without the denied cross-examination. The jury still possessed a satisfactory basis for examining the truthfulness of this testimony and Joshua Davis was not denied a fair trial. In the confrontation cases of this Court, the thing is look not only to the damage done to the integrity of the fact-finding process, but the cases look to the underlying reasons behind the denial of the confrontation. And if there has been a significant misleading of the jury concerning crucial testimony, that reason has to be closely examined. In this case the jury was not significantly misled concerning the crucial testimony, but even if we close examine the -- closely examine the reason behind denying the cross-examination in the area, the juvenile record here, it will bear up to the the scrutiny. If juvenile records had to be revealed in cases that would not benefit in which it would not benefit the defense, anymore than it would have in this case, then many juvenile records will have to be revealed. And, of course, that will open somewhat of the breach and the juvenile system structure and there will be an attempted to damage to the system as such and it will adversely affect many juvenile witnesses who have juvenile -- many witnesses who have juvenile records and it will especially affect us, you are still being rehabilitated at the time they have to take the stand such as was the case here with Richard Green.
Potter Stewart: Mr. Merriner, you began this, your statement by saying up juvenile records have to be revealed in a case that would not be of greater benefit to the defense than in this particular case. Are you suggesting then that the rule should not be that the juvenile record is always inadmissible on cross-examination of prosecuting witness for purposes of impeachment, but that there be a case-by-case rule and balancing of how much harm is done to the defendant by nondisclosure of the record, how much, how -- how much damage would be done to the particular juvenile by disclosure of the record and so on, or are you trying -- is that the rule that do you think the Court --?
Charles M. Merriner: I would like to argue --
Potter Stewart: -- put to test of this constitutional area or are you on the other hand saying that there ought to be a per se rule that if a state has expressed a public policy as your State of Alaska has, that juvenile records not be revealed that that be the end of it, that they never be revealed on cross-examination? Is that what you are telling us that it ought to be or are you as your statement just suggested -- suggesting that there would a case-by-case evaluation and a balancing in each case depending upon the specific circumstances of each case?
Charles M. Merriner: I would argue for a per se rule if I felt that I analytically could, but take the situation where a juvenile is told by his judge. Now you finger somebody else who was witty there and testify about that or else I am going to send your way as long as I can, you had a situation like that and you forbid any questioning about his juvenile appearance, you know, before that court, I can see that confrontation would be denied. Here he had a definite motive, and assuming the testimony is crucial and assuming it's not greatly corroborated to show that there would not have been any doubts raised by having cross-examination.
Thurgood Marshall: But your Supreme Court did limit this?
Charles M. Merriner: Excuse me?
Thurgood Marshall: Supreme Court did not limit the per se rule?
Charles M. Merriner: Well, I read the opinion as hedging on the matter, yes, I think, it did and --
Thurgood Marshall: Well, because the rule that's before us doesn't permit what you say, does it?
Charles M. Merriner: No, but --
Thurgood Marshall: And that's the only thing here before us?
Charles M. Merriner: Well, we do have the other rule that I mentioned about how the interest of justice can call the rule not to be applied, but the Alaska Supreme Court, when it discussed this issue, a rather brief discussion, but --
Potter Stewart: On page 60A, that's at bottom of page, they seem to be hedging a little bit saying that in this particular case, no --
Charles M. Merriner: Yes --
Potter Stewart: -- great damage was done.
Charles M. Merriner: And in footnote 40 on 59A, they start out with a case where they say it stands for this juvenile record not admissible to impeach absence special circumstances.
Potter Stewart: Well, that is citing if would the California case How?
Charles M. Merriner: Yes, but in citing a case --
Potter Stewart: Well, you and to come back to my question, what's your argument is to us in this case, as I understand it then from your answer and you tell me if I'm wrong that you concede that there maybe cases where a denial of the right of the defense counsel to ask a prosecutor witness about his juvenile record would be a deprivation of the defendant's constitutional rights?
Charles M. Merriner: Yes, but I would think they would be --
Potter Stewart: Am I right about that or not?
Charles M. Merriner: Yes, but I think these cases would be very rare and they will not be a great breach in the juvenile secrecy structure as such --
Potter Stewart: These cases would be rare and this is not one of them?
Charles M. Merriner: Yes, the case, for example, where the judge tells them you get on the stand or you will be sentenced more than you would be ordinarily or a case like where there has been perjury, that has come out on the stand and you've got to bring up the juvenile record to show it, in cases like that.
Potter Stewart: Have you --
Charles M. Merriner: I think that's all I have, there is --
Warren E. Burger: When the trial judge heard his answer that he had never been questioned, if not, should that not have suggested to the trial judge that here was an area in which the witness was not being completely candid with the jury?
Charles M. Merriner: It should have suggested that to Mr. Wagstaff, whether it turned out like that.
Warren E. Burger: Do you think Mr. Wagstaff then should have asked for opportunity out of the presence of the jury to pursue the cross-examination, in some way, that would lay a foundation for an exception to the Alaska rule on confrontation?
Charles M. Merriner: Yes, he should have at least done that, and I think the judge had a duty to do it on his own and as I argue in that footnote, this was really not an untruthful reply. He had never been questioned like that as far as we know, he had never been questioned --
Warren E. Burger: Well, at the very least it was a very ambiguous answer, wasn’t it?
Charles M. Merriner: Yes, it was ambiguous.
Warren E. Burger: And you say it was the duty of defense counsel to pursue that?
Charles M. Merriner: Yes, I don’t see why this Court should focus upon that one questions and say, look here was all this perjury when it has not even been raised in the brief, has not been raised until argument now and the lower court has had no chance at all to rule upon that particular error, if that was error at that one point.
William H. Rehnquist: Mr. Merriner, does Alaska practice provide an opportunity to counsel who finds himself in the position of Mr. Wagstaff did following the combined answer of Mr. Green and the objection by the prosecutor and the sustaining of the objection to the question to at least allow the party that asked the question and got what is basically an answer to a question that has been ruled to be impermissible and get that answer stricken, so that he isn’t both bound by the answer and still precluded by the court's ruling from following it up?
Charles M. Merriner: As fas as I know, yes. He could have argued that this was a non-responsive answer and I am not bound, he could have made that argument and the judge certainly within his discussion could have stricken that.
Thurgood Marshall: You say that he was unresponsive, he said, have you ever been questioned, he said, no.
Charles M. Merriner: Well, okay. [Laughter] Certainly, he was responsive to the -- Thank you.
Warren E. Burger: Very well, Mr. Merriner, Do you have anything further Mr. Wagstaff?
Robert H. Wagstaff: Yes Your Honor, thank you. Now with respect to a follow-up on that particular answer, whether that should have been done at trial, I think you should look back to the court’s initial ruling, the -- when the protective order was asked for, it was unequivocal, it cited, the court says, you didn’t want to go in this area at all. We were getting into that area a little bit and that’s why perhaps it was not pursued at that time. I don’t think that particular question is essential. It’s another -- it's another reason why cross-examination should have been allowed on that particular issue. Of course, we never know again what the cross-examination of his record would have revealed and that’s the whole reason of permitting cross-examination.
Warren E. Burger: Was there anything that prevent you from asking the court to give you a hearing out of the presence of the jury to pursue your question on page 34 which at least was very ambiguous, you'd agree and then also to develop what were the detailed conversations between the police and this witness, Green, between the time they first contacted him and the day of the trial to see if, for example, there was any suggestion that if he didn’t cooperate, they would refer this to his probation officer or other comparable, anything to prevent you from doing that?
Robert H. Wagstaff: I would say what prevented me from doing that was the court's indication of the rule on protective order that you essentially felt that his juvenile record was invalid, that’s how I will answer that question, I do answer it.
Warren E. Burger: Well, it preserved the confidentiality of that by taking this kind of thing in chambers, but on the record?
Robert H. Wagstaff: That, perhaps, could have been done and again, the reason why I would not, is because of the protective order was interpreted and the force of it and the rapid objection and the sustaining of it. Again, the critical issue are not these particular questions because we don’t know what the answer would been in further cross-examination. The critical point, the essential point that we're making is the jury was never permitted to consider what pressures Green was under when he made the initial identification at the station house. Mr. Merriner has urged what he characterizes a corroboration argument in which he cites much evidence that didn't even go to jury. The proper test as the Chief Justice suggested is harmless error, a constitutional error was committed, was it harmless? Can we say beyond a reasonable doubt that one juror would not have been affected by this information and I submit that we cannot. The jury was out seven hours as it was. The evidence that was cited -- well, when we're dealing with harmless error I think, it should be kept in mind that usually harmless error is referring to tainted evidence, that should have been kept out. Is there sufficient evidence to convict any way without this? In this case, it's exculpatory evidence that the jury should have been made aware of in a little different situation and I think this situation that was discussed in the case (Inaudible), a 1971 case. Would the jury have been affected by this information? Can we say beyond a reasonable doubt that the jury would not have come in with a verdict, that this would not have raised a reasonable doubt in their mind? In the corroboration argument, Mr. Merriner cites and backs again that we are not even to the jury. Fibers on a safe had matched the coat, this information was contained in affidavit for a search warrant, never submitted to the jury. Rolls of bills and the search warrant never submitted to the jury, extension of the contract and the affidavit for search warrant never submitted to the jury.
William O. Douglas: Extension of --.
Potter Stewart: Or the --
Robert H. Wagstaff: Of the rental agreement, yes. These are not proper considerations when we're discussing harmless error, not -- well is this person probably guilty or looking at the evidence that could have been presented, can we determine whether it’s sufficient to prove beyond a reasonable doubt of guilt? Because we don’t know these rulings, how the trial judge would have ruled, whether this information is admissible in the first place? Whether in fact, the fibers did match. Perhaps, there was an identification by an FBI expert that said, they did not match. We don’t know this. So that information cannot be considered, and I think, it’s pretty clearly improper. Harmless error is important also because the crime was burglary and larceny that he was convicted of, not possession of stolen property. All the information that was the incriminating evidence if it can be characterized that which really incriminated Mr. Davis's car only indicated that there was stolen property in the car, not that the burglary and larceny have been committed, because there were other fingerprints found at the scene, not his. And that’s why Green’s testimony was particularly essential that he established a link in the prosecution’s chain of evidence of recent possession and his testimony, absent his testimony there could have been a conviction.
Potter Stewart: Mr. Wagstaff, are you contending for a rule that would prevent defense counsel to cross-examine a juvenile prosecuting witness as to his previous record in all cases, even though the state had a policy such as your State of Alaska has, keeping such records confidential or are you simply telling us that in this particular case, it was important to protect all the rights of your client?
Robert H. Wagstaff: I am saying both, Mr. Justice Stewart. I think that any time someone is testifying against the accused in a criminal proceeding, that if they have a juvenile record, the defense has a right to bring this out for whatever weight it might have to the jury. That fact alone, in some cases it could be very relevant. For instance in the Alfred fact situation, that could be very relevant, but that’s for the jury to decide. But we are even one step more persuasive than that. Here we can show specific reason for why the juvenile record should be brought out. I think in conclusion that is--
Potter Stewart: To the Supreme Court of Alaska, you argued that your case was different, you said as I understand that, as the general rule is you can’t bring it up but this case is special circumstance.
Robert H. Wagstaff: Yes, I argued--
Potter Stewart: Now you bring that argument to us, are you arguing that the general rule seems to be conceded in the states is simply constitutionally wrong?
Robert H. Wagstaff: I argued both, Mr. Justice Stewart, to the Supreme Court I am arguing now that it should be allowed to be brought out in all circumstances when someone is testifying against the accused in a criminal proceeding unless it can be shown that there is some really wild fact situation that where it would be terribly abusive, but absent that, that it should be brought out and let the jury determine whether this person in his own mind would have some, hold the benefit of his position with the prosecution, the government is offering him as a witness. That’s for the jury to decide and again in this case, it’s much, much stronger because we can make a very persuasive argument to the jury--
Potter Stewart: In fact, your objections are that if we set at this particular question, I got it from the brief, I haven’t gone beyond them, that only Michigan has adopted --
Robert H. Wagstaff: The per se rule, yes Michigan has adopted it. Although the Mississippi case, the Hamburg case, the trial court there permitted testimony, the cross-examination showing that there have been some supervision by juvenile authorities but they felt that the record itself shouldn’t have been offered, but clearly the Michigan Court, the three cases that I cited, have adopted a per se rule. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: -- John W. Webb versus (Inaudible). Mr. Rafferty --
Robert J. Rafferty: Thank you, Your Honor.
Earl Warren: -- you may proceed.
Robert J. Rafferty: May it please the Court. This matter comes before Your Honors on a writ of certiorari directed to the Court of Appeals for the Seventh Circuit. The petitioner, Mr. John Webb, was the plaintiff in an action brought in the Federal District Court in Chicago under the Federal Employers' Liability Act against his employer, the Illinois Central Railroad Company. A jury returned the verdict in his favor in the amount of $15,000. The respondent or defendant filed the usual post-trial motions for judgment notwithstanding the verdict and for a new trial, both of which were denied. And the railroad then took an appeal to the Court of Appeals which reversed the judgment of the trial court and directed that judgment be entered in favor of the railroad. Mr. Webb, the petitioner was, at the time of the accident, a brakeman in the employment of the railroad, had been employed either in that capacity or as the section hand for approximately 25 years. On July 2nd, 1952, his duties took him together with the members of his train crew to the community of Mount Olive, Illinois. And at that point, Your Honors, there are certain tracks which are involved in this case in which are referred to in the Court of Appeals' opinion. If I may direct your attention to a photograph at page 112 of the record, it shows the track layout at the -- quite in question.This document was the defendant's exhibit which was submitted by agreement. To the left to the telephone pole, Your Honors will see a track which is the I.C. main line track. The track in the foreground -- incidentally, you're looking at the picture, you are looking north. The track in the foreground which shows a switch lever and switch stand to the north of the stand is referred to in the record as the passing track. And to the south of the stand, it's referred to as the I.C. house track. This is connected with the I.C. main line track by a crossover switch. To the right is the track of a separate railroad, the L.& N. Railroad and Your Honors will note that it is also connected with the I.C. passing track and the I.C. house track. It's a little difficult to see that approximately six thigh length to the south of the switch stand is a small X and that is the point of the accident in this case. Mr. Webb, on July 2nd, 1952 was standing at a point approximately 15 or 20 feet south of the house track switch when he observed a box car leaking green, and it was his duty to plug up that leak if possible. And for that purpose, it was his intention to go back to the caboose and get a handful of ways to use to plug up this hole. He turned about and according to his testimony he took one step, he put down his left foot.The left foot was caused to roll underneath him. He lost his balance. He fell down. And on the ground, he observed what had caused him to fall. It was the clinker which he described as about this size in appearance. He stated that at that time he observed a hole indicating where the clinker had been before. And he testified that the roadbed was soft and left footprints as he walked in it. Now, this area of course is in the vicinity of a switch or a switch stand and the railroad then, that is a place where good footing is on the upmost important. They get on and off moving cars at that point. They work along side of moving cars at that point. Approximately three weeks to a month before this accident happened, substantial changes had been made by the I.C. in its house track. Prior to that time, the passing track had been raised and within three weeks to a month before, two section crews were put to work on this Mount Olive house track and they raised it about five inches, the track, the ties and the roadbed. And they used about 15 cubic yards of unscreened cinders and chat in order to raise the roadbed. The section foreman testified that the source of his material was a pile which had been left before when the house track was raised. The record has not disclosed how long this pile remained in the vicinity. The plaintiff, Mr. Webb, testified that it was also a customary place for the fireman of the Illinois Central Railroad to clean their fireboxes at this point. The section foreman in testifying about the size of the clinkers which were in this pile indicated that some of them were approximately two inches in diameter but he said efforts were made to exclude clinkers of that size. The evidence on the record also shows that the track was closed for a use of the trainman during the time the repairs were being made. Three people testified with reference to the size of the clinker and whether or not it would constitute a proper item in the roadbed ballast. But first was the plaintiff, Mr. Webb himself, who testified that he had been a former section hand and the clinkers of this size should not be used in a railroad roadbed because they would not pack down and would not give good footing. The next man who testified on the subject was the defendant section foreman, Mr. Rector, who actually supervised and conducted the repairs of this location. Mr. Rector testified that a clinker as described should not be used in a switch stand or switching area near a switch stand. Mr. (Voice overlap) and the --
Stanley Reed: Was it -- was it of a size that they passed through the firebox breaks?
Robert J. Rafferty: It was a fist size one, Your Honor. I honestly cannot tell you whether that would pass through a --
Stanley Reed: Of course, we don't know where (Voice Overlap) --
Robert J. Rafferty: No, we don't Your Honor. The record is sound in that respect whether or not that would pass through the firebox. I submit, however, Your Honor, that there are two possible sources of the clinker, the pile which had existed before and which by the railroad submission did include clinkers of two in size which would be somewhat the approximation of a fist and also the possibility, of course, of them having come from a firebox. Mr. Webb gave his statement from the -- to the railroad, and there is a dispute existing between the parties as to whether or not the clinkering question was on top of the roadbed partially in or partially out of the roadbed. The confusion arises because at one point he said, he did not notice whether or not the clinker was in or out of the roadbed. I do believe, however, that he clarified that at a later time and his statement which was admitted in evidence, I think, also clarifies that point. It appears like -- it appears at page 111, and it says, "This track had been worked on shortly before this by the trainman and the cinders were stirred up and loose. And this large clinker, about six inches in circumference, was buried in the loose cinders around it so that it was not discernible from those rests of the small loose cinders. It looked like the surface was leveled and good enough footing, but this cinder being solid in the loose cinders caused my foot to turn as I stepped on it. It turned my foot and caused me to fall. So that I injured the cartilage in my knees as I fell.” I respectfully submit, Your Honor, from the record as disclosed and the inference is favorable to the plaintiff at this stage. He fell on a clinker embedded in a roadbed near the railroad switch stand. The jury could have found that the source of the clinker was either the old pile which had been used and raised in the house track or a clinker from the respondent's firebox. The jury could have inferred that when the railroad raised its roadbed, five inches, a matter of three weeks before that the clinker was either placed in the roadbed at that time or not removed. The evidence is positive that the area or that the materials used in the roadbed were not screened. From that evidence the jury could conclude that the respondent was negligent in failing to furnish a safe place to work. The Court of Appeals recognized all those facts and recognized that there was a possibility to use the language of the Court of Appeals that the clinker was embedded in the railroad roadbed. But the -- the Court of Appeals went far beyond the record and neglected to tell Your Honors that in looking at the photographs, you will see in the distance several small buildings, in the Court of Appeals at page 144 in the record and its opinion referred to those buildings. It referred to the proximity of the tracks of the other railroad and referred to the fact that the record was found as to whether or not strangers frequent of the premises. And therefore, concluded that there were possibilities that the respondent was guilty, but that no probabilities could be deduced from the evidence. Presumably, because the plaintiff had not negated or eliminated the possibility that the L.& N. Railroad might have injected a clinker in some manner in the I.C. roadbed, presumably because it was possible that a stranger would have done the same thing. And in our reply brief, I referred to several cases which at least in my opinion eliminate the question of whether or not the L.& N.Railroad injected the clinker in the roadbed. For the reason that these cases hold that if one railroad used the tracks of another with its permission, they are responsible for the negligent of the railroad where State permit to use their tracks. So in effect, it comes down to this. Did a stranger put a clinker in the I.C. roadbed or did the I.C. Railroad or it's vice principle, the L.& N. Railroad do that? I submit that when the Court of Appeals search the record for a conflicting circumstantial evidence, they violated the mandate of this Court, in Lavender versus Kurn, Bailey versus Central Vermont and an innumerable line of cases which had been handed down by this Court. As recently as April of this year in Schulz versus the Pennsylvania Railroad, the question of the -- of a lower court searching the record for conflicting possibilities came before the Court and with the Court's permission I will quote a small part of the opinion from page 526 at 350 U.S., "The courts below took this case from the jury because of a possibility that Schulz might have fallen on a particular spot where there happened to be no ice or that he might have fallen on a particular spot where there happened to be -- or they might have fallen from the one bolt that was partially illuminated by shore lights. Doubtless, the jury could have so found and the Court allowed it to perform its function.But it would not have been compelled to draw such inferences.” And in this particular case, the jury could and did find that the I. C. Railroad was negligent in furnishing a safe place to work. I admit the possibility, a remote one, it is true that a stranger might have come on the icy roadbed and buried a clinker. It's the most unlikely possibility, but it could exist. That was a question for the jury to decide. The jury found adversely to the respondent. I respectfully submit that the Court of Appeals was wrong in raising the standard of proof of probabilities as opposed to possibilities. Instead of following the mandate of this Court to allow the jury to decide if the inferences were reasonable, where the conflicting circumstantial evidence put the truth and it was in further error when it substitute its own interpretation of the evidence for that of a jury.
Earl Warren: Mr. Deany.
Herbert J. Deany: May it please the Court and Mr. Rafferty. I would like to mention briefly several items that counsel had just mentioned first. He says that the foreman -- section foreman, Mr. Rector testified that when he found rocks or stones, two inches in diameter, that -- that they made efforts to exclude those stones. I submit that that is not the record in this case. The testimony in that behalf appears at page 73 of the record and starting there at page 140 of the record there and page 73. The question “Now, to the best of your ability, can you indicate about the size of the cinders and the ballast that was cropped in?” Answer “The cinders were pretty clean along with this chat that we gathered up. I would say two inches in diameter would be about the largest. Of course, I have no way of knowing exactly what about.” Now, here's the question that counsel has misstated. Question “Well, now, is any particularly use made of larger cinders if any are found?” Answer “We never use them if we can avoid it. Of course, the larger cinders we take and either bury them or haul them away and dump them in a hole somewhere and dispose of them that way.” In other words, that language there shows that a rock or a stone, two inches in diameter, is not too large for the customary use in railroad railway. Now -- next, he refers to the Schulz case, 250 U.S. 526, I believe it is.
Earl Warren: Will you excuse me just a moment? I --
Herbert J. Deany: Yes, Your Honor.
Earl Warren: -- didn't quite get your point there.
Herbert J. Deany: All right, Your Honor.
Earl Warren: The question was, “Well, now, in any particular -- is any particular use made of larger cinders if any are found?” Answer “We never use them if we can avoid it of course. The larger cinders we take and either bury them or haul them away and dumped them in a hole some place and dispose of them that way.” Now, just what did you say that language --
Herbert J. Deany: I say, Your Honor --
Earl Warren: -- meant?
Herbert J. Deany: Pardon me.
Earl Warren: Yes.
Herbert J. Deany: Mr. Chief Justice, I say that he testified here that two inches in diameter would be about the largest that they would use customarily. Then the question is this. Now -- well, now, in any -- is any particular use made of larger cinders if they are found?That means larger than the two inches in diameter.
Earl Warren: Yes.
Herbert J. Deany: And incidentally, a cinder about the size of a normal man's fist is considerably larger than two inches in diameter. Two inches in diameter multiplied by pi and you've got about six inches for fraction holders.
Earl Warren: Yes.
Harold Burton: But doesn't that just simply lead to the fact that they recognized it, there were some larger cinders around there, if there were, they shouldn't be there and yet, this one was there?
Herbert J. Deany: I would say not, Mr. Justice. I would say it does not lead to that fact. This is just a question as to what they would do if there were larger cinders that he found there when he was removing his ballast.
Tom C. Clark: He said he buried it.
Herbert J. Deany: He said he buried, that's correct, buried it or in other way, this --
Tom C. Clark: (Voice Overlap) either way?
Herbert J. Deany: Either way, dispose of them. No, he did not say it. He said --
Tom C. Clark: (Voice Overlap) --
Herbert J. Deany: -- that he would not use them in the right-of-way.
Tom C. Clark: Next (Inaudible) was to haul them away.
Herbert J. Deany: That's right.
Tom C. Clark: So if he buried them evidently that refers to burying (Inaudible) right-of-way itself.
Herbert J. Deany: Well, then, it was the next question then, if you please, Mr. Justice Clark. Question: “Are the larger cinders ever used in raising track?” Answer: “No, sir.” Is that -- is that to your satisfaction?
Tom C. Clark: No, I was just wondering whether or not the answer there, if it came across the center was over two inches, that would mean that they sometimes buried them right there --
Herbert J. Deany: Oh, no, no.
Tom C. Clark: (Voice Overlap) less than two inches.
Herbert J. Deany: No, he says that -- he said he makes a hole and puts them in there, a hole in some place or hauls them away. But then he goes on to say that he never uses them.
Tom C. Clark: (Inaudible)
Herbert J. Deany: Yes, that's right.
Hugo L. Black: Why? Did he say why?
Herbert J. Deany: Well, for the very simple reason, it might make an unsafe right-of-way if it's larger than that.
William J. Brennan, Jr.: Well, couldn't the jury at least -- a reasonable man differ on what he meant by -- when -- when he said bury them --
Herbert J. Deany: I would --
William J. Brennan, Jr.: -- that a reasonable man differ whether he meant bury them in the right-of-way or somewhere else?
Herbert J. Deany: I would think not, Your Honor, but in particular, would that be true, Your Honor, where he goes on to say, "Are the largest cinders ever used in raising the track," this job was a track raising operation.
William J. Brennan, Jr.: Yes, but even -- even with that.
Herbert J. Deany: Yes. And he says positively and categorically that they are never used in raising the track.
William J. Brennan, Jr.: Do you think it would be unreasonable for a juror to infer from that (Voice Overlap) --
Herbert J. Deany: I certainly do but I don't know anything if it'd be unreasonable, Your Honor, but I think it would be absolutely contrary to the affirmative evidence in the record.
Tom C. Clark: I thought the evidence was (Inaudible) cinders used in that particular track.
Herbert J. Deany: There is one question there that he does say that that -- those cinders and that chat was picked up on the passing track which is north of the switch leading to -- from the main line to the house track. It was extra ballast and Mr. Rector testified that that chat was in good condition. And while we're on that, we may go to page 77 of the record and I like to call your attention on what the evidence there is and this is during the cross-examination of Mr. Rector. And at page 77 right above the -- the page -- record page 147. Question “I understand you inspected this ballast.” Answer “Yes, we load it by hand on the pushcarts and in that way we would watch the loading of it. I did watch the loading of it.” Question “Were you watching these four different man load shovel by shovel?” Answer “Sure. It was right there. They were loading from both sides and I saw every shovel full.” Question “And you never saw large cinders in that mixture at all?” And the answer is, "No, sir." Now, there is positive testimony that this ballast was in good condition. Now, going down further or you get to the question that's screened. It's on the same page. The question there is, "I asked you whether this ballast was screened." He says, "Screened, screen? No, sir, I did not get the question." So he does say it wasn't screened. But that doesn't mean anything if his testimony is positive and it's uncontradicted that the ballast was in good condition, then we got affirmative proof here that it was in good condition.
Hugo L. Black: Did he say he saw every clinker?
Herbert J. Deany: He said he saw every shovel full, Mr. Justice Black.[Laughter]
Hugo L. Black: He didn't say he saw every clinker, did he?
Herbert J. Deany: No, that would be quite a job there, Your Honor, [Laughter] to see every clinker in the rail of right-of-way because there are millions and millions and oceans of clinkers in the railroad of right-of-way. There are cinders right and not necessary clinkers. However, I would say that one oversized clinker would come a long ways from establishing negligence or the lack of exercise of ordinary care in then getting a railroad right-of-way.
William J. Brennan, Jr.: Well, there again might reasonable men not differ though from the fact that this concession that they were not screened, whether or not the steps taken to prevent the oversized clinkers getting into the roadbed are adequate for the purpose?
Herbert J. Deany: Reasonable men might if there were some basis for it or if -- if the evidence was not such as to overcome that possibility. And here, we maintain that the evidence does overcome that possibility.
Hugo L. Black: Was there evidence that he fell over a clinker?
Herbert J. Deany: The evidence of the plaintiff is that he fell over a clinker. Yes, Your Honor.
Hugo L. Black: And I understand your evidence shows that one that's not big enough to be dangerous wouldn't be dangerous to a man so he wouldn't fall over it.
Herbert J. Deany: Well, which would indicate that the clinker probably wasn't the size of the man's fist, Your Honor. And there's plenty of reason --
Hugo L. Black: But if there's evidence that he fell over a clinker and they don't fall over them, don't fall over them, if -- that's normal and that would be evidence that they were not that small, wasn't it?
Herbert J. Deany: That would be not necessarily.
Hugo L. Black: That would be an inference, wouldn't it, if (Voice Overlap) --
Herbert J. Deany: Not necessary. I -- it -- it might -- I don't think it's an inference here because you're -- you're going too far. You're speculating too much here. You've not only got to --
Hugo L. Black: I understood you to say there was evidence that he fell over a clinker.
Herbert J. Deany: Well, that's what he testified to, Your Honor --
Hugo L. Black: Well, that's if --
Herbert J. Deany: -- and we got to admit that.
Hugo L. Black: And there's also evidence that a man is not likely to fall over a clinker that's small.
Herbert J. Deany: The evidence --
Hugo L. Black: That's your -- that's your defense, isn't it?
Herbert J. Deany: No, it isn't, not by any means.
Hugo L. Black: Well, one of your defense is this that they were so small, they were not dangerous, isn't it?
Herbert J. Deany: Well, the testimony and that's the standard of railroading. The testimony is that a rock or a stone to -- up to two inches in diameter is in accordance with railroad standards acceptable for use in railroad right-of-way.
Hugo L. Black: Not dangerous --
Herbert J. Deany: And --
Hugo L. Black: -- you mean?
Herbert J. Deany: Pardon me?
Hugo L. Black: You mean not dangerous?
Herbert J. Deany: I mean that it's acceptable according to the custom --
Hugo L. Black: Well, do you mean -- you mean --
Herbert J. Deany: -- and the standard.
Hugo L. Black: Is it dangerous? What's the evidence on that? If it's less than --
Herbert J. Deany: There isn't any evidence that two-inch in diameter rock is dangerous. There is --
Hugo L. Black: (Voice Overlap) --
Herbert J. Deany: -- evidence here that a rock, the size of a man's fist, might be dangerous.
Hugo L. Black: Whether -- whether that would be one less than two inches, is there evidence that it's dangerous or not dangerous?
Herbert J. Deany: The evidence is that according to the standard of maintenance of track railroad, they use it and use it in accordance with the standard practice of railroad.
Hugo L. Black: Well, then, there is no evidence whether it's dangerous or not dangerous.
Herbert J. Deany: No, not -- not in that pretty terms, Your Honor, I would say. Now --
Tom C. Clark: Well, those that you mention so are so dangerous that they haul them away and put them into some other place wherein they never use it.
Herbert J. Deany: That's right. That's what -- that's what the record shows.
Tom C. Clark: They only did the screening to see that there wasn't any in there.
Herbert J. Deany: A -- the record shows that he looked at the screening before he picked it up and that the screenings were in good condition and a record further shows that he examined every shovel full of the ballast whether it was being loaded on the pushcart. I would say that's rather strong evidence that there wasn't any clinker in this ballast at that time.
Earl Warren: But the clinker --
Speaker: (Voice Overlap) --
Earl Warren: Oh, pardon me. But the clinker the size of your fist be concealed in a full -- full shovel full of clinkers?
Herbert J. Deany: Well, it might be. I would say I don't --
Earl Warren: He believed that if he saw (Voice Overlap) --
Herbert J. Deany: I wouldn't think of that. I wouldn't think it would be very likely too, Your Honor, but at the same time, I couldn't say it would be impossible.
Earl Warren: No, I would -- that just bore on whether -- whether the jury would have the right to determine even though they did see, even though this man did inspect every -- every shovel full that there might have been one in there.
Herbert J. Deany: Well, down to that. It is the position of this defendant that this is nothing but -- fundamentally nothing but an ordinary negligence, common law negligence action. It's true that this action is brought under the Federal Employers' Liability Act. But the Federal Employers' Liability Act while it does modify in some respects the theory of negligence action, it does not modify in any respect the concept of common law negligence, except -- so far it is modified by the prohibition against assumption of risk and substituting compared of negligence for cause instead of -- instead of contributory negligence being a complete defense.
Stanley Reed: Does the record show whether this ballast was screened or not?
Herbert J. Deany: The record does not shows -- does not show that it was screened at this particular movement. That ballast, Your Honor, was moved in sometime before that when they are raising the track, the passing track and that was surplus ballast that is up there in the passing track and it is picked up there, 15 yards of it, because it was surplus and at that time it was in good condition and it's moved on.
Earl Warren: Well, Mr. Deany, it shows that it was not screened, doesn't it?
Herbert J. Deany: The answer to that is --
Earl Warren: Does the record show that it was not screened?
Herbert J. Deany: Yes, Your Honor, that's correct.
Earl Warren: Well, I -- I thought you will answer to Justice Reed that it didn't show that it was screened. But on the contrary, it shows it was not screened, isn't that right?
Herbert J. Deany: The answer to the question at that time, it was not screened at that time. The record show -- so shows.
Harold Burton: Well, does it show as the screen when it's moved in for the first ballast?
Herbert J. Deany: It does not show that either way, Your Honor. Now, if the -- this be the law that there is no change in common law negligence made by the Federal Employees' Liability Act. Then in order for them to make a prima facie case here of negligence on a situation of this character, they must show at least three things. First, they must show that -- well, at least one of three things I should say, it must show that this foreign object, and that's what it would be, was placed in the ballast by the defendant at the time of his work. Or they must show that this foreign object was in the ballast and that they had knowledge or were charged with knowledge of its actual presence in the ballast. Or in the third -- the third thing of element is they must show by evidence that the standard, the customary standard of railroad practice which is the practice that governs an ordinary care was violated in this case. Now, we submit that there isn't an iota of proof on anyone of those three things.
Hugo L. Black: So where does the -- where does the cinders on the railroad track usually come from?
Herbert J. Deany: Well, they -- they might come from --
Hugo L. Black: Where do they usually come from?
Herbert J. Deany: Usually they are place there in a -- in a roadbed by the railroad --
Hugo L. Black: Is there any evidence here that -- there was a stranger came up there with a pocket full of clinkers --
Herbert J. Deany: No, there is --
Hugo L. Black: -- or seen around there before this happened?
Herbert J. Deany: No, there is not, Your Honor. (Inaudible)
Hugo L. Black: Is there any evidence of any kind that would refute the idea that this clinker got on there the usual way?
Herbert J. Deany: The usual way? No, there is not. There is not. And that's our point that the burden is on them to show that.
Hugo L. Black: Show that each way, the particular clinker came from on a railroad track?
Herbert J. Deany: Have it work both ways, Mr. Justice Black. You got to show -- the plaintiff must show it and I suppose, it's according to the theory that you infer. Again, the railroad would have to show where each clinker comes and after all --
Hugo L. Black: No, I -- I suppose as a general rule of law that when you saw something happens nearly all the time on one particular circumstance and you show that the things there and it nearly always comes from the particular thing and the jury for the reason it defined that it came from that thing, doesn't it?
Herbert J. Deany: Well, I don't think that is the -- in line with the decisions of this Court, the previous decisions of this Court.
Hugo L. Black: What decision?
Herbert J. Deany: Well, the Patton here. For instance, the Patton case in 179 U.S. that it wasn't a cinder case of course but it was a case of a fireman whose duty it was at the end of his run to clean the side of his locomotive. He went over to the roundhouse where it was loaded -- located. And going down from the engine, the step gave away and he fell to the ground. Now, that today, of course, that would be -- violates the Safety Appliance Act and the mere fact that that condition existed would establish negligence as a matter of law. But the Safety Appliance Act didn't involve here and the language of that section for that case is very much in point on this question of negligence. There, they indicate that this step had been inspected at various times in route so far as any of the employees of the railroad know. There was nothing wrong there. There was testimony by one railroad official who said that it would be possible for not to work loose when -- when a locomotive was traversing a large area and that it might work loose and come to him, how did he notice? However, the evidence was that it did come loose and the man did fall and you've got the same situation there that you got here. You got evidence here that there was a rock there and this man did fall. But you haven't got -- they didn't have any evidence there that this condition had existed for even a minute before this man stepped on it. And the Court told -- this Court held that in the absence of a showing, positive evidence, affirmative evidence, that this condition was known to the railroad, caused by the railroad or that it existed for such a time as to charge him with the notice, there could be no liability. And that is the situation you got here exactly.
Earl Warren: What do you do with the case of Lavender versus Kurn, Mr. Deany?
Herbert J. Deany: Lavender versus Kurn, that's one of the cases he relies upon. In Lavender versus Kurn, this Court held that there was sufficient probative facts to submit a question of fact to a jury here. And that --
Earl Warren: That's true.
Herbert J. Deany: -- that -- that is true too, Your Honor. You may recall that there was a big mound of dirt and cinders on either side of that switch and there was also a car that went around the bin there and had a mail arm hanging -- suspending from the side, its arched back and forth. It went around and -- while it should have been in the clear pointed a presence of this mound of dirt that elevated this man's head so that -- the -- there was sufficient evidence there to show. Now, that was the condition that was created by the railroads and was known by the railroads to be there and that is not that there's no proof here that this condition was created by the railroad.
Earl Warren: Well, I am reading from -- from counsel's brief in which he -- he says this about the Lavender case. The plaintiff's decedent was killed in an unwitnessed accident. Her theory was that the decedent was killed when struck on the head by a mail hook projecting from a backing train.
Herbert J. Deany: That's right.
Earl Warren: The defendants contended that he had been murdered. Strangers precluded the premises. The mail hook showed no evidence of contact with a human body and there was evidence to show that it was physically and mathematically impossible for the hook to strike the decedent, yet, they let -- let the case go to the jury on those facts.
Herbert J. Deany: Yes, but --
Earl Warren: Are those --
Herbert J. Deany: I think, Your Honor -- I know Your Honor is very busy but I'd -- I'd like to have Your Honor read that case if you can because you'll find, when you do, that the evident -- that mathematical equation there was not exactly right. You'll find that -- it refers to mound of dirt and cinders on either side of that switch which rose from 18 to 24 feet above the top of the railroad. The rails are about seven inches from the ground that over hanging mail arm was 73 and one quarter, one-half inches above the rail. This man was 67 and a half inches tall and he happened to be on one of those mounds which he could have been. That mail hook would have struck him exactly where the evidence indicated that it did strike it.
Hugo L. Black: As I recall it, I -- I may be wrong, but as I recall it, defense was that there a lot of bad people around close to that railroad.
Herbert J. Deany: That's correct. That was in there too.
Hugo L. Black: Someone might have slipped in there and killed him.
Herbert J. Deany: That's right.
Hugo L. Black: Some claimed, he might have hit him on the back of the head and the court below held, as I recall it, that you couldn't speculate on whether he was a stranger came in and killed him or whether he hit him. His head was hit on by this thing.
Herbert J. Deany: The Court -- yes, that's correct.
Hugo L. Black: And this Court said a reasonable amount of speculation was sometimes absolutely essential and all the transactions are right, isn't it?
Herbert J. Deany: And there was sufficient probative facts in there, Your Honor, and properly sought, afford an inference there, but that -- there's no inferences warranted here by the evidence in this case.
Hugo L. Black: There's no inference --
Herbert J. Deany: This Court --
Hugo L. Black: -- no inference when a man who's walking along the railroad track whether the evidence assuming that that he has tripped over at something and he's admitted that cinders of certain size on a railroad track are dangerous and it's also has to be admitted, I assume, that nearly all of the cinders that ever get on the railroad track comes from the railroad. You say that no reasonable man could draw an inference that (Voice Overlap) --
Herbert J. Deany: No, I didn't say that, Your Honor. I'm -- I'm sorry --
Hugo L. Black: Well, you have to say --
Herbert J. Deany: I didn't mean to say that. I might have --
Hugo L. Black: (Voice Overlap) --
Herbert J. Deany: I -- I might have been advertently. I did not mean to say that.
Hugo L. Black: Well, don't you have to say that to say there was not a case for the jury?
Herbert J. Deany: No, I don't Your Honor. I -- I say this that this is a negligent case and that the law -- this man is not an -- the railroad is not an insurer of this man's safety or of a safe place to work. I say that the law in this case is that a plaintiff to maintain his action must prove the elements that are incident to a common law negligent action.
Hugo L. Black: He must present evidence, must he not, from which reasonable fair-minded men could draw the inference that it happened in a way he claimed?
Herbert J. Deany: Yes, he must -- to present evidence on all of the issues that existed and were necessary at common law except as to such modifications as are made in the common law negligence by the Federal Employers' Liability Act. Now --
Stanley Reed: Are there any -- any standards for railroad ballast?
Herbert J. Deany: The standards -- their testimony here shows that standards up to two inches in diameter are proper.
Stanley Reed: Well, what -- what does that mean? The ICC has the standard to that?
Herbert J. Deany: No, no, it does not, Your Honor. That's the practice of this railroad and that's the only evidence in this case. You see, our trouble here is that -- Mr. Justice Reed, is that they're taken the position here that the mere fact that an accident happens and somebody died or is injured establishes a case and that isn't true under the Federal Employees' Liability Act. This Court, the only charge in this case is section -- subsection (6) (a) which alleges that it was the duty of the defendant, whether the defendant violated its duty and that it fail to furnish the plaintiff with a -- fail to use extraordinary care to furnish the plaintiff when their reason -- every safe place to work and to perform the duties of his employment. That was denied. That's the only charge in here. Now, you got a further instruction in this case. It's -- instruction number one, it appears in page 97 of the record. That instruction said that the burden is not upon the defendant to show that he's not guilty of negligence charge but that the burden is on the plaintiff to prove as the negligence -- the charge of negligence and that he must do so by the greater weight or requirements of the evidence. That instruction wasn't questioned as it finally was given. Now, we've got the point here. When plaintiff started this case, he had four charges of negligence in this case. One was failed to furnish -- to exercise ordinary care to furnish the plaintiff with a reason to safe place to work. And by the way that's the criterion that this Court uses in all of these cases. Two, that the defendant negligently placed an oversized rock in its ballast at the time of these improvements. Three that the defendant negligently inspected the equipment so that this rock was left in there, and four that the defendant violated its own rules and regulations. Now, to close up all the evidence, the plaintiff voluntarily withdrew every one of these charges except the one. In other words, the one that he rely so strongly here, namely, that the railroad company negligently placed a rock in this ballast was voluntarily withdrawn by him and that appears to close the plaintiff's case in this record. Now, what his reason for withdrawing that is now coming in and trying to rely on it is something that I cannot fathom personally. But the only reason that they usually withdraw is because they fail to make a prima facie showing such as the negligence law requires and that's what happened in this case. His evidence and it must be affirmative evidence did not show what he charged and because of that he voluntarily withdraw it and relied upon the -- paragraph (6) (a) of the complaint which alleged that it was -- that the defendant violated it's duty to exercise ordinary care to keep the premises safe where is the safe place to work for the plaintiff. Now, there is also a question here as to whether or not this rock was a size of a man's fist or whether as he said it was six inches in diameter or circumference rather.
Earl Warren: You may finish that if you have a minute or so. You might (Voice Overlap) --
Herbert J. Deany: Well, I have several points, Your Honor. I --
Earl Warren: Well, I don't think I've raised --
Herbert J. Deany: [Laughs]
Earl Warren: -- all of your points, but you may finish -- you may finish that one, Mr. -- Mr. Deany --
Herbert J. Deany: All right. Thank you, Your Honor.
Earl Warren: -- if you wish to make a moment to do it.
Herbert J. Deany: Yes. At the time, he testified on the road care. He said, and the record showed at page 14, he was asked what the size of this rock was and he says, “I would -- it was about the size of a man's fist, I guess.” Now, any statement previously taken and which was admitted by agreement and withdraw which was unsworn to do it at the time, he said that he stumbled over a rock that was two inches in diameter. Now, two inches in diameter, multiplied by three and one (Inaudible) is considerably less than the circumference of a man's fist. The evidence further shows here that he fully understood and appreciated what is meant by the circumference instead of the diameter because on cross-examination, at the request of the -- the railroad counsel, he took a tape measure and made a loop showing six inches in circumference and is -- there -- any question in the world about what he knew the difference between six inches in circumference and two inches in diameter.
Earl Warren: Is there much difference --
Herbert J. Deany: Yes, there is.
Earl Warren: -- between two inches in diameter and two --
Herbert J. Deany: Well, it depends. I think it would -- in Your Honor's case, there would be a mind too, and I think there would be in most railroad work now.
Earl Warren: I see.
Herbert J. Deany: Thank you.
Earl Warren: Mr. --
Robert J. Rafferty: I have only several points, Your Honor --
Earl Warren: -- Rafferty.
Robert J. Rafferty: -- I would like to raise. Your Honor questioned Mr. Deany with reference to the shoveling of the cinders, 15 cubic feet into a cart and their foreman witnessing each shovel full. This Court has held in Moore versus Chesapeake & Ohio Railroad that a jury may credit or discredit any part of a witness's testimony as here is arriving its verdict. And certainly, the jury would not be required to believe an incredible story of that type with two section crews working there that the headman stands there and watch shovel by shovel. He also raised the question as to whether or not certain issues were withdrawn from the jury. Paragraph (4), the record shows that paragraph (5), the complaint was still an issue in the case when the case went to the jury. And prior with what happened, the occurrence here and complained of, defendants through its agents and servants had made repairs in the roadbed and ground adjacent thereto and carelessly and negligently placed a large clinkers and cinders are carelessly and negligently allowed and are moved to a large clinker remain in the said cinders. That was an issue in the case that went to the jury. Mr. Justice Reed asked the question with reference to the size of the clinker and I don't think anybody would be better fitted to state whether or not a fist size clinker did or did not belong in a roadbed in the defendants own supervisor. Mr. (Inaudible) who testified at page 87 of the record, well, I asked him this question, "In your opinion, Mr. (Inaudible) with the presence of an existed -- a clinker the size of a man's fist embedded in the cinders adjacent to a switch stand represent a safe place for a train to work?" His answer was no. Reference to Lavender versus Kurn, Your Honor, which you questioned Mr. Deany about, Lavender versus Kurn with two defendants, one was the owner of Illinois Central Railroad and made the same defense in that case they did here, speculation and conjecture. The Court ruled against him and held those were matters of fact for the jury. If a reasonable man could draw inferences from the record, the case should go to the jury. I submit that was the type here and the Court of Appeals in setting up the standard of proof, requiring the plaintiff to prove the case by probabilities with an error and disregarded all the prior decisions of this Court. Thank you.