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THOMAS M. BATES

MAY 5, 1949.-Committed to the Committee of the Whole House and ordered

to be printed

Mr. BYRNE of New York, from the Committee on the Judiciary,

submitted the following

REPORT

To accompany H. R. 1676)

The Committee on the Judiciary, to whom was referred the bill (H. R. 1676) for the relief of Thomas M. Bates, having considered the same, report favorably thereon with amendment and recommend that the bill do pass.

The amendment is as follows: Page 1, line 5, strike out “$15,000” and insert in lieu thereof "$5,000".

The purpose of the proposed legislation is to pay the sum of $5,000 to Thomas M. Bates, of Miami, Fla., in full settlement of claims against the United States for personal injuries, medical and hospital expenses, and other losses sustained as a result of being injured in & collision between a freight train of the Seaboard Air Line Railway Co. and a trailer attached to a United States Navy vehicle, at the intersection of Northwest One Hundred and Sixty-seventh Street, on the tracks of the said Seaboard Air Line Railway Co., in Dade County, Fla., on January 19, 1944.

STATEMENT OF FACTS

On January 19, 1944, it appears that Mr. Bates was a fireman for the Seaboard Air Line Railway Co., operating Extra 822 South coming in to Miami, Fla.; and while the train was running south, approaching Golden Glades Road, a highway running east and west in Dade County, said highway being used by the United States Navy for the purpose of transferring high-test gasoline to Opa Locka, Fla., a United States naval tractor and two trailers were observed approaching the crossing. The whistle on the train was blown and it appeared that the naval vehicle was going to stop, but instead of stopping said tractor and trailers moved forward to the crossing. As a result

the train hit the rear trailer and carried said trailer on the engine some distance until the engine was able to be stopped. The tractor, trailers, and the gasoline carried therein were thrown back into the engine of the train and caught fire; and Mr. Bates was required to jump from the engine while it was still moving in order to save his life, and as a result of this jump sustained a multiple compound fracture of the left ankle, involving the ankle joint; that as a result of said injury, claimant was hospitalized for 37 days and was unable to work for 181 days. After he returned to work, he was unable to continue in the job that he had at the time of the collision, and that it was almost a year from the time of the collision until he was able to resume his duties as fireman.

The Seaboard Air Line Railway Co. paid all medical expenses in connection with clamant's hospitalization and the setting of his leg and ankle. However, he is partially disabled; his ankle is enlarged and stiff, and the injury has caused an eversion of the foot. In an affidavit signed by Mr. Bates, on April 20, 1949, states that pain in connection with this injury is still present after slightly over 5 years have passed.

There was enacted into law H. R. 1631 of the Seventy-ninth Congress, which became Private Law 820, for the relief of William Tolar Šmith, the engineer of the same train on which Mr. Bates was fireman, and the Navy Department recommends the sum of $5,000 appropriated for the relief of Mr. Bates. Therefore, your committee concurs in the recommendation made by the Navy Department and recommends favorable consideration to the bill, as amended.

Navy DePaRTMENT,
OFFICE OF THE JUDGE ADVOCATE GENERAL,

Washington D. C., August 30, 1948. Hon. EARL C. MICHENER,

Chairman of the Committee on the Judiciary, House of Representatives. DEAR MR. MICHENER: The bill (H. R. 3226) for the relief of Thomas M. Bates, was referred by your committee to the Department of the Navy with a request for a report thereon.

The purpose of the bill is to authorize and direct the Secretary of the Treasury to pay the sum of $15,000 to Thomas M. Bates of Miami, Fla., in full settlement of all claims < gainst the United States for personal injuries, medical and hospital expenses, and other losses sustained as a result of his injury in a collision between a freight train of the Seaboard Air Line Railroad Co. and a trailer attached to a United States Navy vehicle, at the intersection of Northwest One Hundred and Sixty-seventh Street, on the tracks of the Seaboard Air Line Railroad Co. in Dade County, Fla., on January 19, 1944.

The investigation conducted by the Department of the Navy into the circumstances surrounding the accident upon which the subject bill is based reveals that, at about 1:30 p. m. on January 19, 1944, a United States Navy tractor pulling two gasoline trailers containing approximately 6,000 gallons of aviation gasoline, driven by a Navy civilian employee acting within the scope of his employment, was proceeding westerly on Golden Glades Road, toward the intersection of One Hundred Sixty-seventh Street and Seventh Avenue, Miami, Fla. The tracks of the Seaboard Air Line Railroad, running in a northeasterly to southwesterly direction, cross Golden Glades Road in this vicinity.

At the northwest corner of the intersection of Golden Glades Road with the tracks of the Seaboard Air Line Railroad, there was a standard railway crossing sign bearing the words "Railroad crossing. Look out for the cars." There were no other warning or safety devices at the crossing. As the crossing was approached from the east, a motor-vehicle driver's view to the right was almost completely obstructed by trees and vegetation until he came within 60 feet of the railroad tracks. A mound of dirt covered with low vegetation obstructed a

driver's view to his left until he came within 38 feet of the railroad tracks. The crossing was near a naval air training station, and training planes constantly followed the railroad tracks to and from the air station, usually at low levels. Such planes were heard immediately before and immediately after the accident.

As the driver of the Navy tractor approached the crossing, he slowed his vehicle and came to a full stop approximately 80 feet from the tracks. The stop was made at this distance to allow for the possible surging effect due to the inertia of the liquid load. After stopping, the driver of the Navy vehicle looked and listened, but did not detect the approach of any traffic along the railroad from either direction. As the driver proceeded toward the crossing, because of the serious obstruction of his view to the left, his primary concern was in that direction until he could get an unimpeded view down the tracks. With his attention thus occupied, he moved to within approximately 10 feet of the tracks before he became aware of the approach of a train of the Seaboard Air Line Railroad from his right. The momentum of the gasoline load by then made it impossible to stop the heavy Navy vehicle before it went out onto the railroad tracks. The train was at this time approximately 300 feet away from the crossing, approaching at an estimated speed of 35 miles per hour with bell ringing and whistle blowing. The driver of the Navy vehicle attempted to get the gasoline trailers across the tracks ahead of the train, but the engine struck the rear trailer, ruptured it, impaled it on the engine pilot, and carried it down the tracks for a distance of 650 feet before coming to a stop.

The spilled gasoline ignited immediately and set fire to the engine and to cross ties and vegetation along the railroad right-of-way. Mr. Thomas M. Bates, the beneficiary of the subject bill, who was the fireman of the train, was riding in the cab of the locomotive at the time of the collision. He jumped from the engine to the ground about 500 feet beyond the point of first impact, sustaining injuries in the fall.

Mr. Bates was taken to the James M. Jackson Memorial Hospital in Miami, Fla. Dr. E. J. Hall, who attended him and treated his injuries immediately after the accident, rendered a surgeon's report as follows on January 21, 1944:

"Present condition and physical examination: contused and lacerated wound just above the left ankle joint with extensive swelling. Free bleeding coming from compound fracture; fracture of both tibia, fibula at ankle joint only; tibial fracture is comminuted and there is joint involvement. There is some spreading of these fragments with slight anterior displacement of the anterior fragment; also transverse fracture of the fibula about 5 inches above the lateral malleolus, these fragments override about 1 inch and the distal fragment is displaced posteriorly the width of the bone. The knee joint is negative (X-ray).

"Treatment: Under general anesthetic wound of medical side of leg just above ankle joint was cleaned up and filled with sulfathiazole powder; fractures reduced and anterior and posterior splints applied; patient admitted to hospital.”

On February 26, 1944, Dr. Hall made the following report to Mr. Bates' employers:

“X-ray examination on Mr. Bates made on January 20 revealed satisfactory alinement of the fractured bones. Since this man still had some open wounds it was impossible to apply a cast at that time. Since that date the wounds have all healed, except for a small skin irritation on the posterior surface of the middle and upper third of the leg.

"On February 24 he was taken to Surgery and circular cast was applied with walking iron and he was allowed to leave the hospital on the 25th.

In my opinion, this patient will have a good functioning leg, but he will continue to have disability probably for another two or three months."

Again on June 12, 1944, Dr. Hall made a progress report to the chief surgeon of the Seaboard Air Line Railroad, as follows:

"Mr. Bates has been reporting to this Clinic about every other day for active and passive treatment. He was rechecked today and reexamination revealed that he has slight swelling of the foot and ankle with a possible slight angulation of the lower part of the leg, laterally. This should not give him any trouble and today permission was given Mr. Bates to take a trip to Georgia.

In my opinion, by the time he returns, in the next ten to fourteen days, he should be able to return to duty. Of course, he may have some slight partial disability when he first begins work. I believe patient should have good recovery with no permanent partial disability.”

On April 22, 1948, a Navy medical officer examined Mr. Bates to determine his present physical condition. Pertinent excerpts from the report of this examination are set forth below:

Lt. ankle circumference 9%"', Rt. ankle 948''; 10° decrease in plantar flexion of Lt, ankle. X-Ray reveals (1) old well healed fracture of tibia, (2) old well healed fracture of fibula with Post. displacement of distal fragment, (3) Roughening of joint cavity.

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"Summary of defects: Lt. ankle circumference 974"', Rt. ankle 948'' 10° decrease in plantar flexion of Lt. ankle. Scar 1/4'' by 14'' medial surface Lt. leg just above ankle from compound fracture. Scar 2" by 1" 7" above Lt. ankle Post. due to burn.

“Remarks or endorsement: Examination reveals no indication of future increase in the now minimal disability.

“R. B. LAUTZENHEISER,

CDR (MC) USNR.Mr. Bates was 47 years of age at the time of the subject accident. He has only one dependent, his wife, who is entirely dependent upon him for support. He was employed by the Seaboard Air Line Railroad as a locomotive fireman, and was absent from his employment as a result of his injuries from the time of the accident on January 19, 1944, until July 20, 1944, when he returned to his work.

The Seaboard Air Line Railroad, in furnishing data concerning the amount of the wages lost by Mr. Bates due to his injury, has based its computations on the wages paid the employees who worked on the job Mr. Bates had at the time he was injured. The total of these wages was $1,979.09 for the period from January 20, 1944, through June 17, 1944, when that particular job was terminated. The division auditor of the company states that he is unable to determine at this date to what job or jobs Mr. Bates might have been assigned at the termination of his regular position on June 18, 1944. The auditor suggested that the remainder of the claimant's lost time be computed on the basis of the average of the daily wages for the period set forth above. At an average of $13.19 per day, therefore, Mr. Bates would have received an additional total of $422.08 for the period from June 18, 1944, to July 19, 1944, inclusive, yielding a grand total of $2,401.17 in wages lost due to his injury. Mr. Bates worked one day during this period as a hostler, however, earning $6.41. With this amount deducted from the above total, the net loss of earnings is $2,394.76. Mr. Bates received no compensation from the Florida State Compensation Commission for the period of his disability.

In a letter dated August 1, 1946, the claimant's attorney stated that Mr. Bates was even then unable to go back to his old job, although he was at that time employed by the railroad in other jobs. This statement may have had reference to the fact that the job Mr. Bates had at the time of his injury was discontinued during his absence, as set forth above. The division auditor of the railroad company has advised the Department of the Navy that Mr. Bates earned $1,662.50 during the period from July 20, 1944, to December 31, 1944; $3,706.32 during the year 1945; $3,833.84 during the year 1946; and $4,303.91 duri the year 1947. All of these wages were earned as a fireman. According to the information supplied by the company, Mr. Bates would have earned a total of $1,642.15 during the months of February through May, 1944, had he not been injured. His yearly salary at this rate would be $4,926.45. It does therefore appear that the claimant may have suffered some loss of earning power even after his return to work. It is not known whether any slight partial disability which may have remained from his injury was solely responsible for this reduction in his annual salary, or whether other factors not connected with the accident may have caused the decrease in whole or in part. In view of the extremely slight residual disability revealed by the medical reports quoted above, it is not believed that the subsequent reduction in Mr. Bates' annual salary can be considered to have resulted from the accident.

Medical expenses in the amount of $271.30 for treatment of Mr. Bates at the James M. Jackson Memorial Hospital, Miami, Fla., and $252 for his treatment at the E. J. Hall Clinic in the same city, were paid in full by the Seaboard Air Line Railroad. The Department of the Navy has been advised of no further expenses incurred as a result of the claimant's injuries.

It is the opinion of the Department of the Navy that the injuries suffered by Mr. Bates were proximately caused by the negligence of the driver of the Navy vehicle. It is therefore considered that the claimant is entitled to relief in the amount of the provable damages he sustained.

The attention of the committee is respectfully invited to the bill H. R. 1631 of the Seventy-ninth Congress, a private relief bill which also arose from the subject accident and which provided relief in the amount of $10,000 for William Tolar Smith, the engineer of the train upon which Mr. Bates was fireman. This former bill was enacted as Private Law No. 820 of the Seventy-ninth Congress. The records on file in the Department of the Navy indicate, however, that the injuries sustained by Mr. Smith were considerably more serious than the injuries suffered by Mr. Bates. The loss of wages sustained by Mr. Smith was estimated at $5,593.50, as opposed to the $2,394.76 shown to have been lost by the claimant in this case.

Mr. Smith's medical expenses amounted to $704, for which amount he was personally liable to the hospital and physicians; whereas Mr. Bates' medical expenses in the amount of $523,30 were borne by his employer. Mr. Smith's injuries were believed to be permanent in several respects, whereas the permanency of the injury sustained by Mr. Bates appears to be minimal.

In view of the foregoing, it is the opinion of the Department of the Navy that the amount of relief which would be provided by the bill H. R. 3226 is excessive. Relief in the amount of $5,000 would be considered reasonable, however, and the Department of the Navy would not be opposed to the enactment of a bill for the relief of Thomas M. Bates in that amount.

The Department of the Navy has been advised by the Bureau of the Budget that there is no objection to the submission of this report to the Congress. Respectfully yours,

E. E. Woods,
Captain, United States Navy,
Acting Judge Advocate General of the Navy.

(For the Secretary of the Navy.)

AFFIDAVIT STATE OF FLORIDA,

County of Dade, ss: Before me, the undersigned authority, personally appeared Thomas M. Bates, who after being by me first duly sworn, deposes and says:

That he is a resident of Miami, Dade County, Fla., presently residing at 204 Northwest Fifty-ninth Avenue, Miami, Fla.; that he is and was at all times pertinent herein an employee of the Seaboard Air Line Railway Co., operating a railway in the State of Florida; that on or about January 19, 1944, your affiant was a fireman on Extra 822 south coming in to Miami, Fla.; that said train was running south approaching Golden Glades Road, a highway running east and west in Dade County, Fla., said highway being used by the United States Navy for the purpose of transferring high-test gasoline to the Naval Air Station at Opa Locka, Fla.; that during the afternoon of said day, while approaching said road, your affiant observed that a United States naval tractor, No. 55769, and two trailers, No. 81354 and No. 88463, were approaching the crossing. A whistle on said train was blown and it appeared that said United States naval vehicles were going to stop; but, instead of stopping, said tractor and trailers moved forward to the crossing:

As a result thereof, the train hit the rear trailer and carried said trailer on the engine some distance until the engine was able to be stopped. Striking said trailer, the gasoline carried therein was thrown back onto the engine of the train and caught fire; that your affiant was required to jump from said engine while it was still moving in order to save his life; that your affiant jumped from said train, and, as a result of said jump, sustained a multiple compound fracture of the left ankle, involving the ankle joint; that, as a result of said injury, your affiant was hospitalized for 37 days and was unable to return to work for 181 days; that at the time your affiant returned to work he was unable to continue in the job that he had at the time of the collision, and that it was almost a year from the time of the collision until he was able to resume his duties as fireman; that the Seaboard Air Line Railway Company paid all the medical expenses in connection with his hospitalization and the setting of his leg and ankle; that your affiant is partially disabled as a result of said injury, suffering pain in said ankle and swelling thereof; that said ankle is enlarged and is stiff, and said injury has caused an eversion of the foot and ankle; that said pain in connection with this injury is still present after slightly over 5 years have passed; that attached hereto is a statement prepared from records available to affiant of the earnings of the individual taking over the

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