Reply Brief of Petitioner — DeLaCruz v. Atchison, Topeka & Santa Fe Railway Co.

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: FILED

UPREME COURT. U. &

MAY 12 1969

Bee my ae A JOHN P. DAVIG, CLERK

In the —

- Supreme Court of the United ‘States

OCTOBER TERM, 1968

No. 1231

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MANUEL O. DELACRUz,

A : Petitioner A

vs. .

THE ATCHISON, TOPEKA AND SANTA FE

RAILWAY COMPANY, _ | ’

| : Respondent

PETITIONER’S REJOINDER TO: RESPONDENT'S

REPLY TO PETITION FOR WRIT OF CERTIORARI

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Of Counsel: 5

_MULLINAX, WELLS, MAUZY, & COLLINS i

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L. N. D. WELLS, JR.

OTTO B. MULLINAX

Counsel for Petitioner

1601 National Bankers Life Building

Dallas, Texas 75201. .

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REILLY PUBLISHING COMPANY — 1710 . HARWOOD ms DALLAS, TEXAS 75215 — 428-8385 _

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In‘ the | |

oF Supreme Court of the United States

OCTOBER TERM, 1968

No. 1231

MANUEL O. DELACRUZ,

, Petittoner

.

THE ATCHISON, TOPEKA AND SANTA FE.

RAILWAY COMPANY,

"Respondent

PETITIONER'S REJOINDER TO RESPONDENT'S

REPLY TO PETITION FOR WRIT OF CERTIORARI

TO SAID HONORABLE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES:

A comparison of the Application and Reply dem- °

onstrate the following:

1. Issue is not joined to the first question pre-

sented. Petitioner presents a question of law as

to, (1) the railroad’s conduct precluding contribu-

tory negligence and (2) the Petitioner’s conduct

could not legally contribute to the accident.

2. Issue is not joined-as to the second guemiion

presented. Petitioner complains not of error in the

charge on damages, but of the Court again redue-.

ing the damages the jury awarded Petitioner, after:

—" the jury a do so.

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3. Reepondenk would persuade - the Court that

Petitioner presents only disputed fact issues. When

‘the printed record is before this Court on the.

that respondent’s efforts inject irrelevant minutae

merits, we shall eft brief these matters to show

of testimony whieh we now respond to in capsulated

’ form:

A. Respondent presents irrelevant evidence

as to a “normal” operation, when the undis-

puted facts showed &n abnormal operation

where this petitioner had never worked in this

pit on this track in 16 years with the company.

B. Each repair track had its.own safety

derail and locks; thus, operation ,on track 2

would not alert one to danger on track 1.

C. Petitioner worked in a separate depart-

ment from the carmen and was not expertise

in their customs gr warning system.

D. The statement in the Reply (p. 14), “In

spite of the fact that’ plaintiff knew that the

' switching crew would normally expect that

there would be no machinist working on rip

track No. 1, the evidence was undisputed that

plaintiff had not complied with the blue flag

rule” is indicative of the non-joinder because

on this day they were not supposed to! (T. 202)

Furthermore, the statement “. . . that plain-

_ tiff was well aware of the fact that the switch-

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ing crew was moving cars in and out of the

repair tracks”' again begs the question be-

cause for the switching crew too have come

upon track No. 1 was no evidence that the

| switch crew was not fully aware of the dis-

abled engine and the workmen under it and tak-

ing due care to avoid it, as Petitioner had been

advised. There was no evidence of a rule or |

order that prohibited a switch crew from

coming upon the repair tracks while repairs.

were being made and indeed this often hap-— .

pened. To the contrary, word “is sent out that —

a certain track is being opened and a move will

be. made in that area, and everybody stay in

the clear during that period of time.” (T. 739). ‘

No such warning was given Petitioner that

track .#1 was being oer

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4. Beginning on page 20° ff. Respondent does re-

spond to the Paluch case for the first time. And

the Railroal seems to present four ‘arguments,

which we understand to be as follows:

A. There was no representation by the sup-

ervisor that the work area was safe becayse

_’ the jury need.not have believed the Petitioner.

. But the evidence is undisputed to the contrary

even if Petitioner be not believed. Impartial

and unimpeached witness Jenkins testified: to

the contentrof the same warning (T. 525, 533-

3

1 There was no’ such admission as to track 1, witch ‘had its own derail

protection.

534). Witness Bixenmann heard Supervisor

Patterson say the yardmaster knew a crew

was working on Rip 1. (T. 572) and the yard-

‘master has a duty to notify the switch crew.

when machinists are working on Rip 1 (T.

613); and switchman Daniels admitted that

the switch crew “. . . knew you was down there

and we had orders to that effect, and we seen

‘you down there before.” (T. 540). Respondent’s

supervisor and agent, Patterson, was not called

by the Railroad to testify, thereby raising a

presumption that he would not dispute what

was said. Mallory & Co. v. N.L.R.B., 400 F.(2)

956 at p. 959 (C.A. 7th Cir. 1968). This elevates

_ facts to the plateau .of being undisputed. -

While a plaintiff need not be believed by a

jury, absent corroboration, because of his in-

terest; with corroboration he and the corrob-

rorating evidence is entitled to be believed.

Continental Nat. Bank v. Conner, 147 T. 218,

214 S.W. 2d 928; Ex parte Rohleder, 424 S.W.

2d 891; Hideburgh v. Palvio, 274 S.W. 2d 94,

N.R.E. It is the height of something or other to

assert that what plaintiff swears to is impeach- _

ed by a prior statement which does not advert

to the questioned testimony at ‘all. (See Reply

bottom p. 20-top p. 21). This Pétitioner under

any rule of construction was not an impeached

witness.

B. Secondly, Respondent seems to say that

Paluch v. Erie & Lackawanna R.R. Co. (3rd

Cir.) can be distinguished (but p. 23 doesn’t

seem to like the one used by J. Aldrich in his

opinion), and would distinguish it as follows:

(1) Respondent finds that in Paluch

the plaintiff was told by his foreman that

the pole was safe, when it wasn’t, but fails

to draw the parallel. Heré the foreman

Said “you fellows are safe, everything has’

been taken care of,” when it wasn’t.

(2) Respondent finds in Paluch that

the plaintiff was totally inexperienced in

climbing poles, and that Petitioner here

was an experienced mechanic. But in /}

. Paluch the plaintiff didn’t get hurt by his |

inexperience in climbing the pole, but in

relying on the foreman that the pole was

safe.

By parallel (although Respondent failed

to note it), petitioner didn’t get hurt from

going in the pit and doing his work, but

in relying on the foreman that the work

area was safe. In this respect. petitioner

also was inexperienced, never having

worked there before.

(3) Respondent finds in Paluch a dis-

tinction because the ground of negligence t

contended for by the Railroad that Palich

was negligent in failing to find the pole a

defective. Somehow this is different from |

a contention in this case by the Railroad.

. that petitioner did not find the work area.

unsafe, or to be more accurate “in placing

himself in a hazardous position.” |

C. Thirdly, Respondent seems to be saying:

If there was a representation of safety made

to Petitioner by the Railroad, which would

normally preclude Petitioner’s negligent con-

duct, it should be disregarded since the jury

found plaintiff contributorily negligent any-

way, and rules of law shouldn’t apply.

D. Finally, Respondent infers that a rail-

road’s negligence may never be the sole im-

mediate cause of an injury because the. em-

ployee was there to be injured. Q.E.D., since

the, plaintiff was there and was injured, tht

fact that his earlier conduct was irrelevant,

does not excuse him. But this is not the lesson

of Lavender v. Kurn, 327 U.S. 645, 653, or

Paluch. To the contrary, the rule is still that

there must be legal causation. Petitioner’s

blue flag would have done no more to stop this

train than the failure of the brake light to come

on would have avoided a rear-end collision in

Dobson v. Gulf Supply Co., 399 ‘S.W. 2d 882,

n.r.e., when defendant there saw. plaintiff’s

car stopping and could not himself stop in time.

The Paluch case cannot be distinguished

from this case. , os

CONCLUSION.

This writ seeks to bring before the Court a mat-

ter of great importance to the jurisprudence as it

applies to F.E.L.A. cases.

Indeed, the fact that the railroad company could |

not join issue with Petitioner, on his application,

argues strongly for a summary reversal to square

the law of the Fifth Circuit with that of the 3rd,’ .

and that justice may be done this injured Petitioner.

Respectfully submitted,

MULLINAX, WELLS, Mauzy & COLLINS

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L. N. D. Wells, Jr.

Attorneys for Petitioner

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2 Not Sixth Circuit as Respondent asserts p. 24.

NER PRERE OF BY

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Peers epee

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CERTIFICATE OF SERVICE.

IT IS CERTIFIED that on the ................. day

of May, 1969, a copy of the foregoing Petitioner’s

Rejoinder to Respondent’s Reply to Petition for

Writ of Certiorari was mailed to Joe Bruce Cun-

ningham, 1905 Continental Life Building, Fort

Worth, Texas 76102, Attorney for Respondent.

Otto B. Mullinax

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