The lady who came once a week to clean my law office and give me advice on health care and what to eat referred Winona Patterson to me. Mrs. Patterson was a frail, petite black lady with abundant wrinkles on her face and hands which made her look older than forty-two. She was dressed in a neat print dress and wore her Sunday-Go-To-Meeting little white hat that appeared to float above her beehive of graying hair. Winona also worked “day jobs” cleaning houses, which was now her sole source of income. She brought with her a family friend and neighbor, Elmer Ramsey.
Elmer was a tall, muscular black man with graying hair and mustache. His hands were the size of an outfielder’s glove and were attached to massive arms that looked like limbs of a live oak tree. He wore an open collared blue cotton work shirt and stiff starched faded levis. In the waiting room he wore an old New Orleans Pelicans baseball cap which he promptly removed upon entering my office. I hadn’t seen one of those caps in years. Elmer explained that, after serving three years in the army during World War II, he had been a trainer for the New Orleans minor league baseball team called the Pelicans. Unlike most black soldiers of that era, he had seen combat in North Africa, been decorated and had risen to the rank of sergeant. After the Pelicans he worked in the construction industry, rising to the position of supervisor at the Jefferson Concrete Company which was located near his house.
Winona told me her husband of eleven years, Fred, had been run over by a train and killed. She said his friend Elmer had witnessed the event and could fill in the details. I agreed to take the case and we entered the standard contingency fee agreement, but I took only 20% instead of the customary 33 1/3 because Winona had been left with three kids and only the house cleaning jobs to support the family. She seemed slightly worse off financially than I.
The Pattersons and Ramseys lived across the tracks in a depressed part of Jefferson Parish (County) called Shrewsberry, pronounced Shoozberry by the local black folk who stayed there. In those days in that neighborhood, folks “stayed” somewhere, they didn’t “live” there. Their friend Elmer stayed near by. Elmer supervised Fred’s work at the cement plant. All the folks in Shoozberry were of humble means but shared their meager resources and looked out for one another. There were several barrooms in Shoozberry, some adjacent to the railroad tracks.
Fred and Elmer were particularly fond of the Dew Drop Inn which lay between their work and home. It was friendly and dark and inhabited by their neighbors and fellow laborers. They could play dominoes, checkers or cards or just enjoy cheap booze in many forms. An old rusty tin roof covered the building. The unfinished lap strake side boards were protected from the elements by large signs advertising cigarettes, beer and wine of every variety. The Dew Drop was located next to, if not actually on, a railroad company right of way. The tracks gave several companies access to New Orleans. The tracks also gave Fred and Elmer a reliable path home at night when they had consumed a bit too much Mad Dog wine, which happened fairly frequently. Mad Dog was the poor man’s balm from the daily drudgery of life and just went by the initials M.D. It was “fortified” with about 30% alcohol which got the desired effect cheaply.
According to Elmer, the tragedy occurred on a cold November night. He and Fred “had a few too many” at the Dew Drop. Fred left first. Elmer followed a few minutes later and walked behind a Great Red Neck train that came to a sudden stop about a quarter mile in front of him. This sudden stopping of the train became an important fact in the case. Why did the train suddenly stop? As Elmer continued down the middle of the tracks toward the caboose of the train, he came upon a horrible scene that stunned him into immediate sobriety. There were bits and pieces of his friend, Fred, between and on both sides of the track. Latter evidence suggests that the Mad Dog had induced an irresistible urge to sleep which Fred accommodated by reposing on the tracks.
The scene was gruesome. A sadistic young photographer employed by the Jefferson parish coroner’s office documented the horrible site in great detail with two dozen 8×10 glossy, black and white photos. They graphically depicted the violent nature of the death, and Fred’s dismembered body on the tracks.
My obligation as an attorney was to first prove that it was The Great Red Neck train that ran over and killed Fred. Next, I had to prove that despite the fact that Fred had contributed to his own death by falling asleep on the tracks, the train engineer had the “last clear chance” to avoid the accident. The “last clear chance “doctrine was well established law (though not well liked by many) in Louisiana at the time. The doctrine goes something like this. If I put myself in danger, i.e. by walking in front of a moving car, I am contributorly negligent and should be barred from recovering any damages. But “last clear chance “says that that even if I put myself in danger, the driver of the car has an obligation to avoid hitting me if he could see me and stop his car. I had to show the train engineer could have, should have, seen Fred and and stopped his train in time to avoid running over him.
Railroad companies were notorious about making plaintiffs go to trial in all cases and prove every element of the case, even the very obvious. They had lawyers advising their lawyers. There was always house counsel but they always had local counsel on retainer just to make sure they got a fair deal in any particular jurisdiction.
McFall, Pseudo, Sophisticate, Nasty and Grumpy were local counsel in New Orleans representing Great Red Neck Railroad. Their chief trial lawyer was a supremely self- assured well-bred uptown New Orleanian by the name of Larry McFall IV. We just called ourselves trial lawyers in those days. Later we would become litigators. This was about the same time our LLB degree became a Juris Doctor degree–if you sent your $25 to the bar association for the upgrade you could hang on your wall. Since Larry was the IV it meant he had three other ancestors who were equally proud of this name. Larry was urbane and sophisticated in a New Orleans sort of way. He was in his mid forties and about five ten but trim and athletic. He was fastidious and an impeccable dresser. He wore Oxford weave cotton buttondown shirts, Brooks Brothers suits, and only the best shoes, all from Perlis Clothing in uptown New Orleans. His family was properly clothed by the Perlis family for at least two generations.
Like his ancestors, Larry was educated at an Ivy League Law School in the Northeast where he acquired a pseudo Bostonian accent. This was essential for membership in the Boston Club in New Orleans. Once, Larry had even been crowned King of Rex. This honor meant that his family had lots and lots of money, could trace their heritage to before the “War Between The States” and had their own personal waiter at Antoine’s Restaurant. To be King of Rex meant you and your family occupied the top of the social heap in The City That Care Forgot.
Upon return from his proper education in the northeast, Larry continued his legal tutelage at his ancestor’s firm. Over the years he became the chief retained counsel for the Great Red Neck Railroad. His firm’s office was located in a large bank building in downtown New Orleans. It was grand and traditional with thick expensive carpets, dark oak paneling, portraits of deceased members of the firm and Audubon Prints. The décor aimed to impress or intimidate depending on if you were client or an opponent in litigation.
After I filed suit, Larry called for depositions of witnesses. The most important witnesses were the engineer and Fred’s friend Elmer. Their depositions were scheduled at Larry’s office. He wanted them in his office because it made his engineer feel comfortable and he thought it would make Elmer feel uneasy. I knew Elmer would not be intimidated, no matter what the setting. Elmer was as confident and self-assured, yet humble as any black man of that era in the Deep South. I guess this was because of his unique physical attributes and life experiences in the army and with the Pelicans. But the real reason I readily agreed to Larry’s office centered on the fact that my modest office lacked proper space to take a deposition.
Burell Claxton was the railroad engineer. He was a huge man going about six two and weighing in at about 350 pounds. He wore a blue denim work shirt tucked into bibbed coveralls. The gold chain of his Hamilton pocket watch (the prized possession of all railroad men) traversed his enormous chest from one pocket in the bib to another pocket. A pouch of Red Man chewing tobacco peeked out of the pocket securing the bitter end of the gold chain. At sixty two, Burel had performed every duty on Great Red Neck trains since he left the farm near Valdosta, Ga., at age fourteen. At heart an honest man, but like most railroad employees of that day he was fiercely loyal to his employer. This loyalty was born, not only out of job security, but out of identifying with a powerful company and performing an exciting job.
The depositions took place in Larry’s large downtown conference room which was encircled with ceiling to floor shelves of law books, some useful but most just decorative. Eighteen high back antique leather chairs surrounded a sixteen foot long antique oak table. Expensive oriental carpets further muted the sound of this already somber chamber. These surroundings were as foreign to Burell as they were to Elmer.
Burell’s deposition was first. I wanted to know why the train suddenly stopped. To win the case, I had to prove this train ran over Fred. I figured Burell stopped the train because he thought he had hit someone or something. But that was not the answer. When asked why the train abruptly stopped, the big engineer explained, “The train went into big hole application”. I had never heard that expression so I pressed on. Burell explained that when the air pressure in the braking system got below a certain pressure all brakes on the train would automatically come on before the pressure got too low to operate the system. That made sense but, then why did the air brake pressure drop? Burell explained that after the train stopped, he and his fireman, looked under the train and saw that a valve handle on the air reservoir tank had been somehow partially opened, causing the reduction in pressure. When asked if he had ever had this handle come ajar in the past, Burell lied and said, no. This falsehood would come to haunt him at time of trial. By now, I was sure that poor Fred’s body hit the valve handle and caused the train to go into big hole application. I planned to prove this to a jury using a mock valve, but old Burell was insistent that this had never happened to him before.
Elmer’s deposition took place next. We spread the two dozen black and white 8×10 glossy photos of Fred’s parts on the table. After the preliminary questions of Elmer as to his age, place of residence and relationship to the deceased Larry asked Elmer what went on at the Dew Drop Inn just before the accident. Elmer talked about drinking with Fred after work. He also explained to Larry what Mad Dog was, as this libation was not on the wine list at Antoine’s. When Larry asked “what happened next”? Elmer replied “Fred left the Dew Drop. I stayed and finished my last glass of Mad Dog. I left and started walking down the tracks when I come up on the place where the train ran over and cut Fred to pieces.” Immediately, Larry sprang into legal motion and said to the court reporter recording the deposition, “I object to the conjecture on the part of the witness that the train ran over and killed the deceased. The cause of death has yet to be established.” Elmer was bewildered by Larry’s legal jargon. He looked mournfully at the many pictures of the dismembered body of his friend and co worker spread upon the big antique oak table.
Any ordinary black man in these times and under these circumstances would have been intimidated by the well-educated, powerful Larry in the citadel of his own law offices. But Elmer was no ordinary black man who just happened to live in the Deep South during the 1950s. He had been a leader of men in combat. He had worked with, and come to personally know, the Pelicans baseball players who were the celebrities of their day in New Orleans. Strong physically and mentally, Elmer had the stoic qualities and good sense of humor that enabled black men to survive the rigors of segregation of the Deep South in those days. In response to Larry’s ridiculous objection, Elmer, took a deep breath, gazed a long while at the mosaic of 8×10 pictures of his friend’s body parts on the railroad tracks and said.“Lawsy, lawsy, man, he sure didn’t die of pneumonia.”
Larry was furious and jumped to his feet registering another objection, to which I responded, “You got an answer to your question. It just wasn’t the one you wanted.”
Well as I said before, they always made you go to trial and this case was no exception. Railroad companies hated to pay because of their perceived status in the world, and just because they were cheap and reactionary. Their attorneys just liked to keep their meter running in order to keep churning out “billable hours”.
Trial commenced and a jury of six good Jefferson Parish residents were selected. The railroad company was still demanding that we prove it was their train that ran over Fred. I called Burell to the stand “under the act for cross examination,” which meant I could treat him as a hostile witness and cross examine him. The engineer explained to the jury about the train going into big hole application and that it was caused by the valve handle underneath the train coming partially open. A cardinal rule of trial lawyers is,when in trial, “don’t ask questions you don’t know the answer to”. Sometimes your gut tells you this rule should be violated. In his deposition, Burell had stated he had never had one of these valve handles come open in the past. This same answer wouldn’t help or hurt me or the defendant so I thought, “why not the question again”. I asked the question again, and low and behold, much to my surprise, Burell thought hard, wiggled in the witness chair and said the air valve handle had come open once before when he was operating a Great Red Neck train. “What caused the air valve to come open on the previous occasion” I asked, pressing my luck a bit. Burell lowered his head even further, wiggled his massive body further into the witness chair, turned red in the face and said in an almost inaudible voice, “I ran over a pig in Alabama.”
His response was so meek the court reporter had to ask him to repeat it and he said in a stronger more resolute voice” I ran over a pig in Alabama.”
There was a slight gasp from an elderly lady juror. Larry immediately asked the judge for a short recess, which was granted without any objection from me. After another more lengthy recess, Larry returned to the courtroom to tell me he had been in telephone conference with House Counsel of the railroad and they were willing to settle with us for the amount we had offered to settle for before trial. I told him the price of poker had just gone up a bit, but after consulting with Winona and some of her relatives and friends we came to a figure that seemed fair to her. The railroad company agreed to the sum and we dismissed the jury with our thanks.
Winona’s check came in a couple of weeks. She didn’t get rich. I didn’t get rich. The truth of the matter is that in those days, in death cases, the survivors were compensated for the pain and suffering of the deceased, loss of companionship of the deceased and loss of anticipated earnings of the deceased. It was pretty obvious Fred died quickly, probably while asleep and therefore had little or no pain or suffering. How do you put a price tag on companionship? Fred was an unskilled laborer and didn’t have prospects for making much money for the remainder of his life.
Winona was not frivolous with her settlement. She bought a little shotgun house in “Shoozberry” and the last I heard all her kids had graduated from high school. One went on to a junior college. Her friend who kept me healthy and my office clean would tell me, as the years went by, that Winona was still doing day work to keep body and soul together and was quite active in her church.
Larry has departed this mortal earth and gone on to wherever all good lawyers go. I guess Elmer continued to frequent The Dew Drop Inn and relate the story of Fred’s demise and his encounter with The Great Red Neck Railroad.