# Opposition Brief — Cowher v. Pennsylvania Railroad

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1949
- **Citation:** 338 U.S. 828

## Text

INDEX.

Argument:

1. Summary Statement of Issues ................ 4

2. The Appellate Court correctly held there was no
prejudicial error in the admission or rejection of
NE Sw Sec ck ia's hate 40 ie eons uk s eee ss 10

3. There was no error in the admission of the un-
disputed evidence relating to respondent’s habit
aad custom in handling its cars in the Altoona

END. UN acta cs citnn dacins labaw sada 14

(a) The petitioner’s tendered evidence was in-
competent to prove habit and custom....... 16

4. The court did not commit error in refusing to
give petitioner’s tendered instruction .......... 26
5. The instruction was erroneous as a matter of law 32
(i) The instruction was unintelligible ........ 32

(ii) The use of the word ‘‘dangerous’”’ in the in-
IE I IN oie 0h. Swed Ss Ke sisi 6 che 33

(iii) The Appellate Court correctly held there
was no error in refusing the instruction... 34

6. It was a question of fact for the jury to determine
whether the respondent was negligent in failing
to furnish the petitioner with a safe place to
work. The Illinois courts correctly refused to
set aside the verdict of the jury finding the re-

AE ys sinc hanxns Khedes Coiveb EN 35
ER asl bak 654 ahs dod wee cuce cous Ne chy uc od 36
RS CK ek ee, eC ar We 2
Opinion of the Court Below .....................5. 1
6S caw adie si bS shud de semen 3
Statement of Facts (additional) .................... 4
Sy Or ES sos ks sac comecs cacucoos 3

CrraTions.
Cases:
Advance v. Thompson, 320 Ill. App. 406, 418, rev. on
ee ys Gee eet eee eres 11
American Ins. Co. v. France, 111 Ill. App. 310..... 18
Andrews v. City of White Hall, 184 Ill. App. 298, 302 16
William C. Barry, Inc. v. Baker, 82 F. (2d) 79...... 16
Berry v. Baltimore & O. R. R. Co. (Mo.), 43 S. W.
NR roa haus huel st nee wake capes 27

Bourland v. Louisville & N. R. Co., 199 Ill. App. 126 33
Brotherhood of Loe. Firemen and Enginemen vy.

Raney (Tex.), 101 S. W. (2d) 863............... 16
Busick v. Il. Central R. Co., 201 Ill. App. 63....... 33
Cc. C. C. & St. L. Ry. Co. v. Jenkins, 174 IIl. 398,

ee Peper as vies ery Preye res a sea eC EET er 20

Central Vermont Ry. v. White, 238 U. 8, 507, 515... 11
Chicago City Railway Co. v. Carroll, 206 Ill. 318. . .23, 24

Conklin Const. Co. v. Walsh, 131 Ill. App. 609...... 33
Cook County v. Calumet & C. Canal & Dock Co., 138

eg Rory eerr crit Peers ter, Oe ll
Duncan v. Kammeier, 206 Ill. App. 207............ 33
~—- v. Thieme, 15 Cal. App. (2d) 458, 59 P. (2d)
Ellis v. Union Pac. R, Co., 329 U.S. 649........... 36
Funderbunk v. Sovereign Camp W. O. W., 179 S. C.

4 2k Saeeeyeery ra ser cee 16
Grant v. Matson, 68 S. D. 402, 3 N. W. (2d) 118.... 16
Harden v. Kifer, 188 Okla. 53, 111 P. (2d) 490...... 16
Herb v. Pitcairn, 324 U. S. 117, 120............... 11, 25

Iterman v. Baker, 214 Ind. 308, 15 N. E. (2d) 365.. 16
Jansen v. Aholt (Mo. App.), 189 S. W. (2d) 121.... 16

Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439,
er I 5 cao banc c os. Rabin eae ll

Kamienski v. Bluebird Air Service, 389 Ill. 462, 464 17

iii

Keiger v. City of Faribault, 220 Minn. 89, 18 N. W.
| & |; Se erneeemne Paes eS ager eee (hae Se

Klusemeier v. East St. Louis Bridge Co., 210 Ill.
BB TOE on BN ies San kT ARG VRS Le OAD + op exrnsesll

Kneip v. Schroeder, 166 Ill. App. 215.............
Lavender v. Kurn, 327 U. S. 645, 652.............

Los Angeles Milling Co. v. Los Angeles, 217 U. S.
RR rr ey | ee eee es

Miller Agency, Ine. v. Home Ins. Co., 276 Ill. App.
Oe on hak hn bass ka MEV EVOR EA EW Eek sak oN See sa

Mobile Fruit Trading Co. v. J. H. Judy & Son, 91
Se BIE, sTvwetN A hh ce yo er h eens pewng eae

Myers v. Reading Co., 331 U.S. 477, 485...........
Neice v. Chicago & Alton R. R. Co., 254 Tll. 595, 605
a a Oe eee ee
People v. National Box Co., 248 Ill. 141...........
Puget Sound Nav. Co. v. Lavender, 160 F. 851.....
Quin v. Heihold, 100 Ill. App. 320.................
Ritholtz v. Andert, 306 Ill. App. 61................
Schillo v. City of Chicago, 326 Ill. App. 423 ( Abs.)

Senquist v. Hardward Mutual Fire Ins. Co., 296 III.
App. 510, 523, aff’d 371 Ill. 360.................

Shortway Lines v. Sutton’s Admr, 219 Ky. 541, 164
yc SE Wohi desc cneccah sd néacha cia caces

Showalter v. Western Pac. R. R. Co. (Cal.), 96 P.

(2d) 964, sub. op. 16 Cal. (2d) 460, 96 P. (2d) 895
Soibel v. Oconto Co., 299 Tl. App. 518, 523..........
Standard Oil v. Neville, 48 F. (2d) 580.............
Suchomel v. Maxwell, 240 Ill. 231, 235.............

Swartout v. MeDonald Mortgage & Realty Co., 102
eS © 8 ee a eee eee

Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29.....

Thomas v. Metropolitan Life Ins. Co., 131 Pa. Super
588, 200 A. 21

Turner v. Donovan, 50 Ill. 85
U.S. v. Cole, 45 F. (2d) 339

cere ee ee eee eee eee eeeeoes

16

33

&, 19

16
19
33
16
18
24
16

16

a

iv

Van ee v. Cohen, 254 Ill. App. 576, cert.
A Se i ME ig 566s inn 00550000 chan tet 16

Whyte v. Rogers, 303 Ill. App. 115................ 24

Wilkerson v. McCarthy, 336 U. S. 53, 62........... 36

Wilson v. Bauman, 80 Ill. 493................... 18, 19
Statutes:

ae AN i ro eee ada ode Oem RE 9, 11

Ill. Rev. Stats. 1947, Chap. 110, Par. 199...........

IN THE

Supreme Court of the United States
Ocroser Term, A. D. 1949.

No. 234

GRANT J. COWHER,

Petitioner,
vs.

THE PENNSYLVANIA RAILROAD COMPANY,

a Corporation,
Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI.

S.

OPINION OF COURT BELOW.

The opinion of the Appellate Court is published in ab-
stract form only, in the official reports, Cowher v. Penn-
sylvania Railroad Company, 336 Ill. App. 308, 83 N. E.
(2d) 359. The petition of the petitioner for leave to
appeal to the Illinois Supreme Court was denied without
opinion.'

1 The full text of the opinion of the Appellate Court is found in the
record. (R, 1-19.)

a

. a

JURISDICTION.

The respondent suggests that the court should deny
certiorari for the reason that the trial in the state court
resulting in a verdict of the jury finding the respondent
not guilty, was in conformity with Federal statutory re-
quirements, as construed by this court.

IIL
QUESTIONS PRESENTED.

The ultimate issues presented by the record, are:

(a) Did the Illinois courts err in refusing to set
aside the verdict of the jury finding the respondent
not guilty, because of alleged errors in the admission
or rejection of evidence of habit and custom tendered
by petitioner; and incidentally, was the question of
the admissibility of evidence a Federal or a State pro-
cedural question.

(b) Did the Illinois courts err in refusing to hold
that there was prejudicial error in the refusal of the
trial court to give an instruction tendered by the
petitioner.

al

IV.
SUMMARY OF ARGUMENT.

(1.)
Summary Statement of the Issues.

(2.)

The Appellate Court correctly held that there was no
prejudicial error in the admission of the undisputed evi-
dence relating to the method of handling cars by the re-
spondent in the classification yard from the hump to their
destination on the various tracks.

(a) The petitioner is in no position to complain
regarding the rejected evidence offered pertaining to
habit and custom for the reason that the offered evi-
dence was in fact incompetent in the form tendered, to
prove such facts.

(3.)

The Ulinois courts did not err in holding that the trial
court correctly refused to give petitioner’s tendered in-
struction.

(4.)

It was a question of fact whether the respondent was
negligent in failing to furnish the petitioner a safe place
in which to perform his work. The evidence on every
material issue of this question preponderated heavily in
favor of respondent. The Illinois courts did not err in
refusing to set aside the verdict of the jury finding the
respondent not guilty.

Vv.

RESPONDENT’S ADDITIONAL STATEMENT
OF FACTS.

The petitioner, a brakeman, in the employ of the re.
spondent was injured in its Altoona, Pennsylvania, Yards
on February 1, 1945 at 11:55 P.M. (R. 76, 77), when he
fell while alighting from a standing box car, after it had
reached its destination and coupled onto a standing car,
(R. 124, 125.)

The petitioner in his complaint charged that the re-
spondent was negligent in failing to furnish him with a
reasonably safe place to work. (R. 69.) The allegations
of his complaint (R. 68, 69) and the evidence adduced at
the trial show that petitioner based his case upon the
alleged presence of ice and snow on the top of the box
car in question; that the presewee of such ice and snow,
therefore made it an unsafe place for the petitioner to
perform his work.

The petitioner also testified that the place where he
stopped the car ‘‘was very dark. I could not see as the
floodlights had been shut off.’’ (R. 91.) All of the peti-
tioner’s co-employees appeared as witnesses for the re-
spondent and disputed petitioner’s testimony in this re-
spect: (a) John W. Chatham, a conductor in charge of
the classification yard at Altoona, (R. 257) and who was
on duty at the hump (R. 262) that night from 11:00 P. M.
to 7:00 A.M. (R. 262) said, (R. 260, 261) ‘‘As far as I
could see the yard was illuminated by floodlights on the
night of February 1, 1945’’; (b) J. E. Makin, yardmaster,
testified as to the location and power of the floodlights at
the yard. (R. 265.) He said, (R. 266) ‘The lighting
conditions in the Yard on the night of February 1, 1945

_

were that it was very light. All the lights were illumi-
nated.’’ He further testified that ‘‘The part of the Yard
immediately west of the bridge (location of car in ques-
tion) is illuminated. It was illuminated that night.’’
(R. 266); (c) T. S. Norris, gang foreman in respondent’s
car inspection department, (R. 285) who inspected the top
of the car immediately after the accident (R. 289), said,
“The top of the car was well lighted on account of the
floodlights above us, * * * The top of the house car was
well lighted up—this particular car.’’; (d) J. E. Denning,
a car inspector of this respondent, (R. 294) who made the
inspection of the car in question with Mr. Norris, testified
(R. 295), ‘I did see there was sufficient light there to note
any difficulties on the car without use of the handlight.’’;
(e) F. M. Mikusinski, an employee of the respondent
whose duty it was to inspect and maintain the flood-
lights, at the Altoona Yard (R. 298, 299) testified concern-
ing the location of the floodlights; that he was on duty
until 9:00 or 10:00 o’clock on the night of February 1,
and that none of the lights was out during the time he
was there.

The petitioner testified that there was three inches of
hard snow on top of the car; that there was a crust on it
and that there were foot marks in that snow. (R. 90.)
The petitioner also testified that one of the reasons why
he slipped was because there was ice and snow around the
grab iron on top of the car. (R. 92.)

The petitioner freely admitted that when he climbed
on the car at the hump that he used the grab iron on the
top of the car to reach the top of the car. In this respect
he said (R. 124): :

**When I got on the top I got hold of the grab iron
on the roof. I don’t remember with which hand I
grabbed it. I pulled myself up by means of the grab

a

iron. This grab iron is about 20 or 22 inches ]
and is made out of metal, about 5g inch metal. It
stands about three inches above the car.’’

The petitioner further testified that after he reached the
top of the car, **I stood on top of the car as it traveled for
about ten car lengths, after I got off the ladder. Then I
traveled about 25 car lengths while seated.’’ (R. 124.)!

The petitioner was the only person who testified as to
the presence of ice and snow on the top of the box car in
question.

In his statement to the respondent, immediately follow-
ing the accident, (Defendant’s Exhibit 5, R. 268) he said:

“Car stopped and in getting off car lost my hold,
fell to six feet injuring left wrist.”’

No mention was made by the petitioner of the ice and
snow on the top of the car in this report.

In his signed statement on February 13, 1945 (the acei-
dent happened on February 1, 1945) he said (Defendant's
Exhibit 1, R. 283):

‘*l went over the side ladder of the car and after
descending down the ladder about two treads, my feet
slipped off of the ladder and broke my hold on the
ear and I went down to the six foot.”’

The Appellate Court in this respect in its opinion said
(R. 7, 8):

‘*When plaintiff gave his statement immediately fol-
lowing the occurrence he said nothing about snow or
ice being on top of the car or on the rungs of the
ladder. About 12 days after the occurrence he signed
another statement in which he attributed his mishap
to the snow and ice on the car. The car upon which
plaintiff rode and from which he fell had been picked
up at Vandergrift at 1:25 A.M. and arrived at Al-

1 On direct examination he testified that when he reached the top of
the car he did not have any place to stand so he sat down. (R. 89.)

7

toona at 9:20 P.M. Vandergrift is situated about 250
miles east of Pittsburgh. There was no evidence to
indicate that snow had fallen on the train as it pro-
ceeded westward to Altoona. Immediately following
the occurrence an inspection of the car was made by
defendant’s car inspectors, T. S. Norris and P. E.
Denning. The Witness Norris testified that a com-
plete inspection of the car was made. His report
showed that there was no snow or ice on the roof. Mr.
Denning, who accompanied Norris, did not climb to
the top of the car but did examine the ladders on the
sides of the car. He stated that there was no snow on
them. The ear which plaintiff rode down the hump
just before getting on the box car was free of snow
and ice.’’ (Emphasis supplied.)

The car on which petitioner claimed to have sustained
his injury was Great Northern Box Car 33415. (R. 253.)
This car was picked up at Vandergrift about 250 miles to
the east of Pittsburgh. (R. 254.) The train left Vander-
grift at 1:25 A.M. on February 1, 1945. Respondent’s
freight conductor Smith, said that he stayed with this
train until he delivered the train and the car in question
to respondent’s Altoona Yard at 9:20 P.M. on February
1, 1945. (R. 254.) The conductor's report (Respondent’s
Exhibit 5) shows these facts. (R. 255, 256.) Smith
further testified that he did not know the weather condi-
tions that prevailed from the time he left Pittsburgh until
the time ‘‘we delivered the train in the Altoona Yard.”’
(R. 257.)

Respondent's conductor Chatham (R. 257) who was on
duty at the Altoona Classification Yard at the hump in
question, testified that he did not know when the peti-
tioner hoarded the car that night; that he did not see him
get on the car; that he saw him on the car ‘‘when he
came up past me.’’ He further testified that he could not
recall whether there was any snow on the roof of the car.

(R. 260.) He also testified that he did not recall the
weather conditions that prevailed that night in the Al.
toona Yard. However, respondent’s gang foreman Norris
(R. 285) who inspected the car in question immediately
after the occurrence testified (R. 286) that he found
‘*nothing wrong with the car whatsoever’’; that he made
an inspection ‘‘all over the car, top and bottom, under.
neath and everything.’’ He further said that, ‘‘I found
the roof of the car free from anything and all the safevy
appliances were in first-class condition, the handhold, run-
ning board, etc. There was no ice and snow accumulated
on the roof of the car.’’ (See also, R. 291.)

Respondent’s car inspector, Denning, (R. 294) who in-
spected this car with Norris, but did not go on the roof of
the car, testified (R. 296) that he did not know what the
roof of the car was like, but that there was no snow on the
other parts of the car.

The petitioner testified that there was about six inches
of snow on the ground; that it had a hard crust on it;
that the snow had melted a few days before and had
frozen again. He further testified that it had not been
snowing ‘‘that day (referring to date of the accident)
nor had it been snowing in Altoona for a couple of days
previous to this time.’’ (R. 88.)

Respondent’s conductor in charge in the tower said that
when the car came past him that the petitioner was on the
ear (R. 260); that he did not order the petitioner to get
on the car (R. 260) as testified to by petitioner. (R. 88.)
This conductor also testified that in handling cars over
the hump it was the brakeman’s duty to test the car to
see if it was safe to ride before it was cut off; that before
the car is cut off the brakeman tests the car to see if it is
all right and until this is done, the car is not cutoff. (R.
263, 265.)

It is obvious that the controversial issue in this case was
the question as to whether or not there was ice and snow
on the car in question. It is further apparent that if the
jury believed that there was no snow and ice on the car
in question, that the petitioner had no cause of action.
It is also apparent from the transcript of record that the
jury accepted the version of the occurrence as testified to
by respondent’s witnesses, after hearing the evidence on
the disputed questions of fact, (a) whether there was ice
or snow on the top of the box car in question, and (b)
whether the place where the petitioner alighted from the
car in question was dark or well illuminated.

We will demonstrate in the argument to follow that all
of the facts on this question were fairly and impartially
submitted to the jury under proper instructions by the
court.

VI.
ARGUMENT.

1.

Summary Statement of the Issues before the Illinois Courts.

In the present action the petitioner sought to recover
damages for injuries alleged to have been sustained under
the provisions of the Federal Employer’s Liability Act.’

Trial was had under the Illinois procedure before a
jury, which returned a verdict finding the respondent not
guilty. (R. 71.)

The Illinois Appellate Court affirmed the judgment of
the trial court entered on the verdict of the jury. Sub-
sequently under Illinois procedure,? the petitioner filed

145 U.S. C. A. 51-60.
2Tll. Rev. Stats. 1947, Chap. 110, Par. 199.

10
his petition for leave to appeal to the Illinois Supreme
Court. That court, after considering the vetition filed by
the petitioner, and the answer filed thereto by this re.
spondent* denied the petition, making the judgment of the
Appellate Court final.

The petitioner in his petition for writ of certiorari to
this court reasserts in substance the grounds upon which
he sought a review of the judgment of the Appellate Court
in the Ilinois Supreme Court, which were as follows
(R. 20, 23) :

(a) That the Appellate Court misunderstood the
issues in that the trial court improperly excluded evi-
dence of habit and custom under which cars were han-
dled at respondent’s Altoona Classification Yard; that
the court sustained objections to his attempts to prove
these matters in the presence of the jury to the preju-
dice of the petitioner.

(b) That the petitioner was prejudiced by the
manner of the admission of certain evidence pertain-
ing to respondent’s habit and custom in the manner
of handling its cars at its Altoona Classification Yard.

(c) That the trial court erred in refusing to give
a certain instruction tendered by the petitioner.

2.

The Appellate Court correctly held that there was no
prejudicial error in the admission or rejection of the
evidence.

The petitioner contends that the trial court erred in
refusing to admit certain evidence offered by him to prove
certain habits and customs of the respondent in the manner
of handling of its cars at the Altoona Classification Yard.

The respondent submits that there is grave doubt
whether rejection of the evidence in question raises a

3 Not included in transcript of record.

11

Federal question under the Federal Employer’s Liability
Act,! but was merely a question of state procedure.’

If it be assumed that the question of the admissibility
of the evidence of habit and custom raised a federal ques-
tion, we shall demonstrate that there was no prejudicial
error in this respect which entitled the petitioner to a
reversal of the judgment entered on a verdict of the jury
finding this respondent not guilty.

The petitioner particularly objects to the statement of
the Appellate Court wherein that court in its opinion said
(p. 23 of Pet.):

‘*Nothing occurred in the presence of the jury that
would suggest to the jury that the court considered

proof of the custom not to be proper.’’ (Emphasis in
statement of petitioner.)

The petitioner points out several instances wherein
certain offered evidence was rejected. In many instances
the petitioner’s attorney, himself, said in the presence of
the jury that he would make an offer of proof of the re-
jected evidence (R. 81; R. 87; R. 97; R. 106; R. 109). The
court did not comment or state at any time, in the presence
of the jury, that proof of the custom sought to be established
was inadmissible. It will be noted that the petitioner in
each of the cited instances told the court in the presence of
the jury that he would make an offer of proof. If any
error occurred in the trial, in the respect mentioned, it was
induced by counsel for petitioner repeatedly stating in the

145 U. S.C. A. 51, 60.

2 Herb v. Pitcairn, 324 U. S. 117, 120; cf. Central Vermont Ry. v. White,
238 U. S. 507, 515; Los Angeles Milling Co. vy. Los Angeles, 217 U. S. 217
226; Cook County v. Calumet ¢ C. Canal & Dock Co., 138 U. 8. 635. In
the following states where this question has been considered, the courts
have held that the admissibility of evidence is procedural and governed
by state law: Advance Vv. Thompson, 320 Ill. App. 406, 418, rev. on other
grounds, 387 Ill. 77; Showalter v. Western Pac. R. R. Co. (Cal.) 96 P.
(2d) 964, sub. op 16 Cal. (2d) 460, 96 P. (2d) 895; Joice V. Missouri-
Kansas-Texas R. Co., 354 Mo. 439, 189 S. W. (2d) 568.

12

presence of the jury that he would make ‘‘an offer of
proof.’’

As a matter of fact the court plainly told petitioner’s
counsel in chambers that he was sustaining the objections
to the offered evidence (R. 97) ‘‘to the form and not to
the substance.’’

The petitioner asserts (p. 27 of his petition) that all of
the evidence by which he offered to prove custom and usage
was not subsequently received in evidence; that even the
Appellate Court could only say, that ‘‘ substantially all of
the excluded evidence was later presented to the jury.’’ He
fails to point out, however, wherein the evidence was
deficient in the respect mentioned.

An examination of the record shows without dispute that
the statement of the Appellate Court, above referred to,
is in accordance with the record (excluding from considera-
tion petitioner’s evidence on direct examination) (R. 57-
58; R. 127; R. 261; R. 263, 264; R. 278; R. 280; R. 289;
R. 298, 299).

All of which evidence, as the record shows, insofar as
it pertained to the customs and usage of the respondent
in handling cars at its Altoona classification yard, was
wholly undisputed.

Under our subsequent proposition 3, we shall demon-
strate that the evidence which the petitioner now contends
was relevant to prove custom and usage, was in fact
irrelevant and incompetent in form to prove such facts.
We will also show that each specific series of questions
propounded to the petitioner by his attorney, was in fact
incompetent to prove any custom and usage. We shall
also show, that as a matter of law, the petitioner could
not have predicated a legal offer of proof upon the rejected
evidence. Under these circumstances, the petitioner having

13

failed to conform to Illinois legal requirements in making
his offer of proof cannot now complain that the court erred
in rejecting such evidence.

In petitioner’s offer of proof (R. 81) he contended in
substance that if the petitioner had been allowed to answer
the questions, he could establish the practice of handling
ears found unsafe to ride. This practice (according to the
petitioner) was, in substance, as follows: When the brake-
man found a car unsafe to ride, he notified the pincutter
and the pincutter would cut off a second car and tell him
to get on the platform of that car. There was not one
scintilla of evidence that a box car with snow and ice on
top of the car, through custom and usage, or otherwise was
considered an unsafe car.

The record shows without dispute that there was nothing
defective with the braking apparatus of the car in question,
or that the petitioner had any difficulty in stopping the
car when it arrived at its destination. The petitioner
testified that (R. 91): ‘‘ After the car was at its destina-
tion, | stopped the car;’’ that ‘‘after the car had come to
a complete stop and was coupled to another standing car,
I started to get off. The car that I was coupled on to was
a box car’’ (R. 124-125).

The Appellate Court in its opinion held that there was
no evidence which tended to show, ‘‘the command or direc-
tion given by defendant’s conductor to plaintiff to get up
on the box car proximately contributed to cause his in-
juries.’’ The Appellate Court also found that the petitioner
did not contend in that court that the ‘‘presence of ice and
snow is in and of itself any factual basis to support a
jury’s finding of negligence.’’ It further said:

‘*Looking at the facts in the light most favorable

to plaintiff they show a direction to get on a car,
which the plaintiff did without trouble. Since the

—

14

presence of ice and snow was not negligence and since
the original direction of the conductor did not embrace
his descent in the manner in which he elected to de-
scend, it cannot be said that the record contains any
evidence which tends to show that the command given
proximately contributed to cause plaintiff’s injuries,”

We submit that an analysis of the evidence appearing
in the record amply supports the statement of the court
in the respect mentioned.

The cases cited by the petitioner under this heading to
sustain his contention that the proffered evidence was
admissible under the pleadings, are not decisive of any
controversial issue. These cases merely state the general |
rule of law (with which we agree) when proof of habit and |
custom is proper. The Appellate Court found that there
was no dispute as to the custom and usage of the respond-
ent in the handling of its cars at its Altoona classification |
yard on February 1, 1945. |

There is, therefore, no merit to the contentions of the
petitioner under his proposition I.

3

The Appellate Court correctly held that there was no
prejudicial error in the admission of the undisputed evi-
dence relating to the method of handling cars by the

respondent in its classification yard, from the hump to
their destinations on the various tracks.

The petitioner contends under this heading that the
court erred in rejecting certain evidence tendered by the
petitioner in his case in chief, relating to method of han-
dling the cars in the classification yards of the respondent.

Petitioner says that the court erred in rejecting this
evidence (which he says was competent at the time it was

15

offered) to show the practice or custom of handling cars
from the hump to the various classification tracks. He
urges in substance that this error was not cured by the
subsequent admission of the evidence, either by the de-
fendant, or developed by petitioner’s counsel in his cross-
examination of defendant’s witnesses.

Under this heading the petitioner cites numerous cases
to sustain this contention. We have painstakingly exam-
ined each of the cited cases. It would serve no useful
purpose to analyze each of these cases and to distinguish
each case either on the facts or the law. We deem it
sufficient to advise the court, that these cases do not reach
the questions presently before the court in this petition.
Petitioner’s cited cases may be divided into three general
classes. (a) Cases where the evidence was disputed or was
the only evidence in the case on the question involved,
(b) Cases in which the offered evidence was corroborative,
and (c) Cases where the the offered evidence was
cumulative.

The Appellate Court in its opinion considered these
classes of cases (cited by petitioner) and held that where
‘the issues are contested on the proof, the exclusion of
cumulative or corroborative evidence, cannot be cured by
its subsequent reception.’? The Appellate Court in con-
sidering the classes of cases cited by the petitioner, also
held in substance that this rule of law had no application
where the evidence on the question of fact sought to be
established was undisputed (as in the instant case). In
pointing out this exception, after stating the rule of law
referred to above, the Appellate Court said:

‘‘Tf, however, the fact is not disputed, the court’s
initial rejection of the evidence is corrected by the
later proof of the undisputed fact irrespective of the

identity of the witness by whose testimony it is |
proved.’’ (Emphasis supplied.)

EERE

16

The Appellate Court found as a fact that:

‘There was _no controversy as to the existence of
the custom. (Emphasis supplied by the court.) The
jury could not have escaped believing that which the
defendant freely and unqualifiedly admitted.’’ (Em.
phasis supplied.)

In addition to the cases cited by the Appellate Court in
its opinion, to sustain this rule of law, the following
Illinois cases might be added thereto: Van Ameringen vy.
Cohen, 254 Ill. App. 576, cert. den. 254 Ill. App. XIX;
Senquist v. Hardware Mutual Fire Ins. Co., 296 Ill. App.
510, 523, aff’d. 371 Ill. 360; Andrews v. City of White Hall,
184 Ill. App. 298, 302.

It has been unqualifiediy held in innumerable cases that
the admission of erroneous or incompetent evidence is not
reversible error, where the facts sought to be proven by
such evidence, are subsequently established by undisputed
or uncontradicted evidence.'

(a)

Petitioner’s offered evidence to prove habit and custom
was incompetent to prove such facts in the form tendered.
The petitioner is therefore in no position to assert error
in this respect.

1 Neice Vv. Chicago & Alton R. R. Co., 254 Ill. 595, 605; Suchomel v.
Mazvwell, 240 Ill. 231, 235; Soibel v. Oconto Co., 299 Ill. App. 518, 523;
Schillo v. City of Chicago, 326 Ill. App. 423 (Abs.); Eaton v. Thieme,
15 Cal. App. (2d) 458, 59 P. (2d) 638; Swarthout v. McDonald Mortgage
& Realty Co., 102 Ind. App. 298, 199 N. E. 467; Iterman v. Baker, 214
Ind. 308, 15 N. E. (2d) 365; Shortway Lines v. Sutton’s Adm’r., 219 Ky.
541, 164 S. W. (2d) 809; Keiger v. City of Faribault, 220 Minn.
89, 18 N. W. (2d) 777; Jansen v. Aholt (Mo. App.) 189 S. W. (2d)
121; Harden v. Kifer, 188 Okla. 53, 111 P. (2d) 490; Thomas v. Metro-
politan Life Ins. Co., 131 Pa. Super 588, 200 A. 210; Funderbunk v.
Sovereign Camp W. O. W., 179 S. C. 80, 183 S. 462; Grant v. Matson,
68 S. D. 402, 3 N. W. (2d) 118; Brotherhood of Loc. Firemen and Enqine-
men V. Raney (Tex.) 101 S. W. (2d) 863. This appears to:be the Federal
rule. William C. Barry Inc. v. Baker, 82 F. (2d) 79; U. 8S. v. Cole, 45 F.
(2d) 339; Standard Oil v. Neville, 48 F. (2d) 580; Puget Sound Nav. Co.
v. Lavender, 160 F. 851.

Beer fry ~

aaa

There is, however, in our judgment a more cogent reason
why the evidence was properly rejected by the trial court
at the time it was offered.

The respondent in the Illinois Supreme Court in its
answer to petitioner’s petition for leave to appeal? to that
court urged that petitioner’s tendered evidence as to habit
and custom did not comply with Illinois procedural re-
quirements; that on such grounds the evidence was prop-
erly rejected in the trial court. The Appellate Court in
its opinion did not specifically refer to this question. How-
ever, this question was before the Illinois Supreme Court.'

17

The petitioner says that his purpose in offering this
‘ evidence was to establish the existence of a practice or
custom at the particular classification yard to show the
regular or usual method of handling the cars over the
hump.

On pages 23, 24 of his petition, the petitioner lists alleged
instances in which objections were sustained to offers of
evidence to prove these facts. At another place in his
petition (p. 35) he says the evidence was finally admitted
‘after being condemned twelve times.’’

Petitioner’s attorney was a capable and experienced trial
lawyer. We have no doubt that he was fully cognizant of
the rules of evidence requiring the proof of certain facts,
in order that evidence of custom and usage be admissible.
We also assume that he was cognizant of the Illinois rules
of evidence relating to the manner of making an offer of
proof.

“ Not included in the transcript of record.

8’ The trial court advised counsel for plaintiff that he was sustaining
ae to the offered evidence “as to form and not as to substance.”
(R. 97.)

*On petition for leave to appeal the Illinois Supreme Court searches
the entire record to determine if the judgment entered by the Appellate
Court is justified by the record. In its review the Supreme Court is not
confined to the grounds upon which the Appellate Court based its opin-
ion (Kamienski v. Bluebird Air Service, 389 Ill. 462, 464).

18

The record shows that petitioner’s counsel made five
offers to prove certain facts, which he contended were
relevant. The questions which he propounded to the wit-
ness (and to which objections were sustained), to establish
custom and usage, were in fact incompetent and were
erroneous as to form and substance. The court correctly,
as a matter of law, sustained the respondent’s objection
to such questions, and to the alleged offers of proof based
upon evidence sought to be adduced by such inquiries.

The Appellate Court in its opinion summarizes the facts
which the petitioner contends he offered to prove. The
petitioner says that he offered competent evidence to prove
these facts, which was rejected by the trial court.

We will demonstrate by the record, that the petitioner
did not offer any competent evidence to prove habit and
custom, notwithstanding petitioner’s assertions in his peti-
tion that the offered evidence tended to prove such facts.

Before adverting to the record, in this respect, the
attention of the court is first directed to the fundamental
Illinois rules of evidence relative to the facts necessary
to be proved to establish a custom and usage,

The courts of Illinois have repeatedly held that before
evidence of a custom or usage is admissible, certain facts
must be shown to establish its existence. (a) It must be
a known custom, (b) It must be certain, (c) It must be
uniform in its application, and (d) It must have existed
for such a length of time so as to warrant the inference
that the party against whom the right was claimed had
knowledge of it. (Miller Agency Inc. v. Home Ins. Co.,
276 Ill. App. 418; Kneip v. Schroeder, 166 Tl. App. 215;
Mobile Fruit Trading Co. v. J. H. Judy & Son, 91 Til. App.
87; Quin v. Hethold, 100 Ill. App. 320; American Ins. Co.
v. France, 111 Ill. App. 310; Wilson v. Bauman, 80 Til.

—

19

493; Papin v. Goodrich, 103 Til. 86; Turner v. Donovan, 50
Ill. 85.) ;
In the Miller case (cited above, 2'76 Ill. App. 418) the
court in discussing this question, saiid (p. 427):
‘‘A custom or usage to become binding upon the
parties must have antiquity, as well as uniformity

and universality.’’ (Crawford w. Clark, 15 Ill. App.
561.) (Emphasis supplied.)

We submit that an examination of the record clearly
demonstrates that the series of questions which were
propounded to the petitioner by nis attorney, did not
establish or tend to establish any facts which would show
the existence of a custom or usage of the respondent.

Under the authorities cited above the petitioner should,
first, have adduced evidence which would tend to show the
existence of a custom and usage in Altoona classification
yard on February 1, 1945.

While the petitioner contends that he made numerous
offers of proof to establish such cwstom and usage, the
record conclusively shows that he made only five such
offers of proof.

The record shows that prior to the first offer of proof,
the petitioner was asked the following questions by his
counsel (R. 81):

‘‘Mr. Monek: Have you ever ridden a car, gone
to a brake platform and found tlhe car unsafe to ride?

Mr. Costello: That is objected to.

Mr. Monek: Let me finish my question please.

Q. Have you ever gotten on a car to ride it off the
hump and found it unsafe to ridle?

Mr. Costello: That is objectedi to.

The Court: Objection sustaimed.

The Witness: Yes.

Mr. Monek: Your Honor, I sam going to make an
offer of proof. I offer to prowe by this witness—”’

———

The court will note that the petitioner was asked if he
had ever ‘‘gotten on a car to ride it off the hump and
found it to be unsafe to ride?’’

What the petitioner had done in a particular instance
did not tend to establish custom and usage for the reason
that (a) it had no tendency to show that there was a
custom and usage in existence at the particular hump,
‘b) such custom and usage had been in existence for any
length of time; and (c) the respondent had notice of
such custom.

It was incompetent to attempt to establish a custom and
usage by showing what the petitioner had done on a par-
ticular occasion, as these facts (even if proved) did not
tend to establish such custom.

In C. C. C. € St. L. Ry. Co. v. Jenkins, 174 Ill. 398, p.
407, the Supreme Court said:

‘**To establish a usage or custom it is not sufficient
to prove certain isolated instances. The usage must
be positively established as a fact, and not left to
be drawn as a matter of inference, from transactions.
(27 Am. & Eng. Enc. of Law, p. 728.) A usage which
is to govern a question of right should be so certain,
uniform and notorious as probably to be known to
and understood by the parties as entering into their
contract, (United States v. Duval, Gilp. 336,\ and ean-
not be proved by a single, isolated instance. (Dean
v. Swoop, 2 Binn. 72; see, also, Janney v. Boyd, 30
Minn. 311; Taylor v. Mueller, id. 343). So, also, it
is held that particular instances of a certain practice
in a bank do not establish a usage, (Allen v. Mer-
chants’ Nat. Bank, 22 Wend. 215) nor instances in one
or two banks other than the one concerned in the
alleged usage. (Chesapeake Bank v. Swain, 29 Md.
501.) In Herring v. Skagg, 73 Ala. 446, it was held
that a custom is a fact and is as capable of proof as
any other fact; that it may be proved by evidence of
facts and instances in which it has been acted upon,
but is not proved by evidence that it was acted upon

a

21

in a few particular instances of dealing, nor is such
evidence admissible to establish its existence.’’

On the second occasion the petitioner’s counsel sought
to establish custom and usage (so he says) by attempting
to show how many cars the petitioner had ridden off the
Lump ‘‘at a time’’. In this instance the record shows the
following (R. 87):

‘‘Mr. Monek: Mr. Cowher, in riding cars off the
hump, how many cars do you ride at a time?

Mr. Costello: That is objected—

The Witness: One, Two, Three.

Mr. Costello: I move the answer be stricken.

The Court: The answer may be stricken.

Mr. Monek: Your Honor, I will have to make an-
other offer of proof."’

For reasons shown above, this question was likewise
objectionable as incompetent to establish, or tend to estab-
lish a custom and usage existing in the Altoona Pennsyl-
vania yard of the respondent on February 1, 1945.

The record further shows that prior to the third offer
of proof, the petitioner sought to prove the same facts
which he attempted to prove by his second offer of proof
R. 96, 97). In this respect the record shows as follows:

‘‘Mr. Monek: Have you ridden more than one car
joined together off that hump?

Mr. Costello: That is objected to.

The Witness: Yes.

The Court: Objection sustained.

Mr. Monek: Your Honor, I think that that is very
material in this case.

The Court: That is a matter of opinion.

Mr. Monek: Mr. Cowher, would at times two or
more cars go to the same destination in a yard?

The Witness: Yes.

The Court: Objection sustained.

Mr. Monek: Was there an objection?

Mr. Costello: Yes, there was an objection. It is
the same thing all over again.

w .

Mr. Monek: I think it is competent and I am go-
ing to try until it is ruled on.

The Court: I made my ruling to the form, not the
substance.

Mr. Monek: I think I have a right to hear the
basis of his objection.

The Court: You heard it.

Mr. Monek: I think I have a right to hear the
basis of his objection.

The Court: You heard it.

Mr. Monek: I did not hear the basis.

Mr. Costello: It is the same objection I have been
making right along.

The Court: The same matter that we discussed.

Mr. Monek: Well, I would like to make an offer
of proof on that too.’’

Prior to his fourth offer of proof, petitioner's counsel
asked petitioner the following questions (R. 106) :

‘‘Mr. Monek: Your Honor, I am trving to show
what his occupation is so that the jury may deter.
mine whether or not he can return to work.

The Court: Go ahead.

Mr. Monek: I have to show how he sets brakes
and gets on and off cars and the jury has a right to
know so they can determine whether he can return
to that type of work.

Mr. Costello: I object.

The Court: Objection sustained.

Mr. Monek: I would like to make an offer of
proof on that.’’

The witness was permitted subsequently to testify as
to what work he performed in connection with his duties.
There could be no question, therefore, as to whether
the court erred in the rejection of the offered evidence
in this instance. In this respect the record shows as
follows (R. 106):

‘The Witness: In working as a switchman or

brakeman, you throw switches, put on brakes, get
on cars that are moving, get off cars that are mov-

ing. You have to climb up on box ears and apply
the brake with your left hand, throw your weight
against it and set the brakes. * * *”’

The fifth offer of proof (R. 109) (in substance the same
as the fourth offer of proof) was for the purpose of prov-
ing the physical strength required of a brakeman in the
performance of his duties. The petitioner in this respect
offered the following evidence (R. 108, 109):

‘*Mr. Monek: Now how many cars does a brake-
man ride off the hump at various times?

The Witness: Well—

Mr. Costello: That is objected to.

The Court: Sustained.

Mr. Monek: Your honor, I want to show, I think
it is important to show what type of work these
brakemen have to do, how many cars they must ride
down, so forth and so on, one or more coupled to-
gether and so forth and so on. I think that goes to
the degree of strength required and so on and so
forth.

The Court: Objection sustained.

Mr. Monek: Well, I would like to make an offer
of proof on that particular phase then.

The Court: That you may.’’

The record shows (as we demonstrated above) the kind
of work petitioner had to perform in connection with his
duties. There could, therefore, be no error in the rejec-
tion of this offer.

The preliminary Illinois procedural requirements essen-
tial to make a valid offer of proof are well settled. The
witness must be placed upon the stand and the examination
conducted to a point where it is desired to offer the evi-
dence upon the question and, ‘‘then put the question and
allow the court to rule upon it, and then offer what was
expected to be proved by the witness, if he was not al-
lowed to answer the question asked.’’ (Chicago City Rail-

a

24

way Co. v. Carroll, 206 Ill. 318; Whyte v. Rogers, 303 Il.
App. 115; Ritholtz v. Andert, 306 Ill. App. 61.)

It is apparent, under the foregoing authorities, that if
the questions propounded to the witness, to which an
objection is sustained (prior to the making of the offer
of proof), are incompetent or irrelevant; that a valid
offer of proof cannot be predicated upon the action of
the court in sustaining an objection to the irrelevant and
incompetent evidence offered.

We have demonstrated above that all of the questions,
in each instance, which petitioner’s counsel propounded
to the petitioner, were in fact incompetent to prove, and
did not tend to prove, any element essential to establish
a custom and usage on the part of the respondent.

It will also be noted from the record that the offers of
proof made by the petitioner were offers to prove ‘‘what
the petitioner did’’ at various times and under various
circumstances. All of which, we have demonstrated above,
did not tend to prove the existence of custom and usage.

The petitioner did not at any time ask the witness if
there was a custom or usage in existence under which
cars were handled at the Juniata hump, in the Altoona,
Pennsylvania Yard of the respondent, on February 1,
1945.

If the petitioner had shown the existence of a custom,
it would have been necessary for him to establish by
further evidence that, (a), the custom was in existence
on the day of the accident, and that (b) the respondent
had notice of it. The record shows beyond dispute that
the petitioner did not prove any of these essential facts.
Neither did he make an offer to prove any such facets.
For the reasons indicated the trial ecurt properly rejected
the offers of proof, in the form tendered by the peti-
tioner.

25

The petitioner also suggests that the proof of habit and
custom was vital to his theory of the case. This is a mere
assertion, without any foundation in the record. The rec-
ord shows that the petitioner rode the car in question to its
destination and that it was coupled onto a standing car
without any difficulty. The petitioner had he determined
the car was unsafe to ride,' ordered it cut off and trans-
ferred to the side track, would have encountered the same
identical hazards in alighting therefrom, that he did when
he attempted to alight after the car had reached its final
destination. The proof of habit and custom had no ma-
terial bearing on the liability of this respondent.

Aside, however, from this view, all the material evidence
as to respondent’s method of the handling of the cars at
the hump was before the jury, and it was not in dispute.
The jury could not have been misled or prejudiced by the
manner of the admission of such evidence.

It is further suggested that the decision of the Illinois
courts on the admissibility of the evidence in question, or
the manner in which it was admitted, rested on adequate
and independent state grounds; that under such circum-
stances this court has said it will not review such question.?

!'The record contains no evidence which by inference or otherwise
tended to show that a car with snow on the top was considered unsafe
to ride. The petitioner does not assert that the car was mechanically
defective in any respect.

* Herb V. Pitcairn, 324 U. S. 117, 125, and cases therein cited.

26

i.

The court did not commit error in refusing to give the
instruction in question.

(a)

The petitioner contends that the court erred in refus-
ing to give the following instruction (R. 307):

‘If you believe from a preponderance or greater
weight of the evidence that the box car in question
was at the time in question covered with snow and
ice and that defendant knew, or in the exercise of
ordinary care should have known that the snow and
ice, if any, was there and knew or should have
known, that its presence rendered it dangerous for
& man to go upon and ride said car; and if you fur-
ther find from a preponderance of the evidence that i
plaintiff went upon the box car in question in the
course of his employment at the order and direction
of defendant’s conductor and that said conductor
had authority to give such order and direction, if
any; and if you further find and believe from the pre-
ponderance of the evidence that the accident and in-
jury to the plaintiff was the direct and proximate
result, in whole or in part, of obeying the conductor’s
order, if any, then you should consider this together
with all of the facts and circumstances proved by a
preponderance of the evidence in arriving at your
verdict.’’

The record shows that the petitioner tendered only
four instructions, three of which were given by the court.
In petitioner’s Given Instruction No. 15, (R. 309) the
court instructed the jury that it was the duty of the de-
fendant to exercise ordinary care to furnish the petitioner
“fa reasonably safe place in which to perform his work.”’

Petitioner’s Given Instruction No. 23 (R. 309) was on
the measure of petitioner’s damages.

27

Petitioner’s Given Instruction No. 23 (R. 309) author-
ized the jury to diminish petitioner’s damages if it found
he was guilty of contributory negligence.

The petitioner offered no instructions on the habit and
custom of the railway company in handling of the cars
in the switching operation. If he predicated his case on
this theory he failed to tender any instruction in this
respect.

The petitioner contends that the refused instruction
quoted above, was a correct instruction and should have
been given. He says this instruction was approved in
Berry v. Baltimore € O. R. R. Co., (Mo.) 43 S. W. (2d)
782.

However, assuming solely for the purpose of argument,
that the tendered instruction in the Berry case was a cor-
rect statement of the law, as applied to the facts in that
ease, it does not follow, as petitioner urges, that his re-
fused instruction was a correct statement of law, either
under the facts in the instant case, or as a matter of law.

The instruction referred to in the Berry case (Berry v.
Baltimore & O. R. R. Co. (Mo.), 43 S. W. (2d) 782), was
as follows:

‘*At the trial, the court overruled a demurrer to the
evidence asked by the defendant and submitted the
case to the jury on instructions covering the two
grounds of negligence mentioned. The only instruc-
tions given for plaintiff, other than on the measure
of damages, in addition to the formal parts and un-
disputed facts, required the jury to find ‘that the
defendant, by its agents and servants (other than
the plaintiff) stopped said train near Xenia, Illinois,
with the caboose thereof on a trestle, and that the
step of said caboose extended out to about the edge
of said trestle, so that a person alighting from said
caboose would fall from said trestle down about twenty
feet and sustain injuries, and that it was dark and

eee a

in the night-time; and if you further find that at the
time and place where said caboose stopped on said
trestle as aforesaid, if you do so find, plaintiff was in
darkness of the night-time and did not know and had
no means of ascertaining, if you do so find, that said
caboose was on said trestle, and that thereafter the
plaintiff was ordered and directed to alight from said
caboose there, and did, pursuant to said order, step
off said caboose and fall about twenty feet, sustaining
injuries; and if you further find that the defendant,
its agents and employes (other than plaintiff), in
ordering plaintiff to alight from said caboose there,
if you so find, failed to exercise ordinary care, and
that said defendant, its agents and employes (other
than plaintiff) knew, or by the exercise of ordinary
care on their part would have known, of the aforesaid
conditions, and that by reason thereof, if you so find,
it was dangerous and not reasonably safe: and if you
further find that the defendant, its agents and em-
ployes did cause and permit said caboose to stop on
said trestle as aforesaid, and that they knew, or by
the exercise of ordinary care on their part would have
known, that by reason thereof it was likely to cause
injuries to plaintiff as aforesaid and that it was dan-
gerous and not reasonably safe, if you do so find; and
if you further find that the defendant, its agents and
employes (other than plaintiff) were guilty of negli-
gence in stopping said caboose on said trestle as afore-
said, if you so find and in ordering plaintiff to alight
from said caboose under the circumstances aforesaid,
if you so find, and that plaintiff, while exercising or-
dinary care for his own safety, if you do so find, was
injured as a direct and proximate result of the afore.
said negligence and carelessness on the part of the
defendant, its agents and servants (other than plain-
tiff), then your verdict must be in favor of the plain-
tiff and against the defendant herein’.’’

An examination of petitioner’s refused instruction
shows that this instruction cannot be considered an ‘‘ap-
proved” instruction on the theory that it is the same or
a similar instruction to that considered by the court in
the Berry case, for the following reasons:

_——

First—Petitioner’s instruction is not the same, or
even similar, to the instruction given in the Berry
case.

Second—Petitioner’s refused instruction was as a
matter of law erroneous in many particulars, as we
shall subsequently demonstrate.

Referring to the first of the above stated propositions,
petitioner’s refused instruction authorized the jury to find
the defendant guilty of negligence if the presence of ice
and snow on the car ‘‘rendered it dangerous for a man to
go upon and ride said car.”’

The petitioner did not charge in his complaint that the
presence of ice and snow ‘‘rendered it ‘dangerous’ for the
plaintiff to go upon or ride the car’’.

The allegations of the petitioner’s complaint with re-
spect to the negligent acts charged against the respond-
ent, were as follows (R. 69, Par. 8, Complaint of Peti-
tioner) :

‘8. Defendant at the time and place alleged and
wholly regardless of its duty toward the plaintiff
committed one or more of the following acts of negli-
gence and thereby caused the injuries to the plaintiff :
a) It unnecessarily permitted a great amount of snow

and ice to be and to remain upon the grab irons
and the top of said car where plaintiff had to work
when it knew or in the exercise of ordinary care
should have known that said ice and snow was there
for a long time and that it would endanger plain-
tiff in the performance of his duties on said car.

b) It failed to use ordinary care to furnish plaintiff
with a reasonably safe place in which to work.

ce) It failed to use ordinary care to furnish the plain-
tiff with reasonably safe instrumentalities with
which to work.

d) It negligently directed and ordered plaintiff to
ride said car when it knew or in the exercise of
ordinary care should have known that it was cov-
ered with snow and ice and that the presence of
said snow and ice coupled with the absence of a

30

brake platform from which to operate said car in-
crea the hazard and danger to the plaintiff jn
operating said car.

2) It failed to couple said car to another car with a
brake platform from which Presa could have
operated the hand brake and taken said car to
its destination when it knew or in the exercise of
ordinary care should have known that to require
the plaintiff to operate the hand brake from the
roof of said car when it was covered with ice and
snow which increased the hazard to plaintiff would
endanger his safety.’’

The complaint in the Berry case, in each of the two
counts relied upon for recovery, charged the alleged acts
of negligence, and also alleged under these conditions that,
‘*it was dangerous, and not reasonably safe.’’ It, there.
fore, appears that the use of the word **dangerous”’ in the
instruction in the Berry case was authorized under the
pleadings and proof in that case. Plaintiff’s use of that
word in the insiruction under the pleadings and evidence
made the instruction clearly erroneous.

The instruction in the Berry case after enumerating the
facts under which the jury might find the defendant negli-
gent, concluded with the following language:

* * ***and that plaintiff, while exercising ordinary
care for his own safety, if you do so find, was injured
as a direct and proximate result of the aforesaid neg-
ligence and carelessness on the part of the defendant,
its agents and servants (other than plaintiff), then
your verdict must be in favor of the plaintiff and
against the defendant herein.’ ’’

Plaintiff’s refused instruction, after enumerating six
propositions (which we will later consider) concluded with
this language (R. 308) :

* * * “‘then you should consider this together with

all of the facts and circumstances proved by a prepon-
derance of the evidence in arriving at your verdict.”’

_

The plaintiff also omitted from his instruction the words,
‘and not reasonably safe’’ following the word ‘‘danger-
ous’’ which were included in the instruction in the Berry
case.

The instruction in the Berry case (if it be assumed to be
a correct statement of the law), was clearly a preemptory
instruction, which apparently contained all the elements
necessary to create legal liability on the part of the de-
fendant in that case.

The petitioner in order to avoid the preemptory lan-
guage of the instruction in the Berry case, merely told the
jury it could consider ‘‘this, together with all of the facts
and circumstances, ete.’’

It is clear beyond any possible logical argument that
even if the instruction in the Berry case was an ‘*ap-
proved"’ instruction, the petitioner is in no position to urge
the correctness of the refused instruction on the basis of
what was said in the Berry case. Petitioner’s instruction
was (a) an entirely different instruction, (b) the instruc-
tion in the Berry case was authorized under the pleadings
and proof in that case; and (¢) the instruction in the Berry
case was based upon facts which were entirely different
from the facts in this case.

31

The argument of the petitioner that he was entitled to
give this instruction on the theory that the instruction was
approved in the Berry case is clearly without merit.

(b)

The respondent as to the second of the above stated prop-
ositions, (that this instruction was erroneous as a matter
of law), will demonstrate that the plaintiff was not entitled
to give this instruction under any circumstances.

—_

As we pointed out above the petitioner did not tender
any instruction advising the jury as to issues in the case,
or concerning the allegations of negligence charged in his
complaint; that he tendered only four instructions, three
of which were given at his request.

5.
The instruction was erroneous as a matter of law.
(i)
The instruction was unintelligible.

The refused instruction told the jury that if they be.
lieved ‘‘from a preponderance or greater weight of the
evidence,’’ six enumerated findings of fact, which were as
follows:

(i) **that the box car in question was at the time in ques-
tion covered with snow and ice,

(ii) and that defendant knew, or in the exercise of ordi-
nary care should have known that the snow and ice,
if any, was there and knew, or should have known
that its presence rendered it dangerous for a man to
go upon and ride said car;

(iii) and if you further find from the preponderance of
the evidence that plaintiff went upon the box car in
question in the course of his employment at the order
and direction of defendant’s conductor

(iv) and that said conductor had authority to give such
order and direction, if any;

(v) and if you further find and believe from the prepon-
derance of the evidence that the condition of said car
by reason of the presence of the snow and ice, if any,
was such that a reasonably prudent person in the
position of said conductor would not have ordered
plaintiff to go upon the car,

(vi) and if you further find from a preponderance or
greater weight of the evidence that the accident and
injury to the plaintiff was the direct and proximate
result, in whole or in part, of obeying the conductor’s
order, if any,’’

a

that they should ‘‘then consider this together with all of
the facts and circumstances proved by a preponderance
of the evidence in arriving at your verdict.’’

The word ‘‘this’’ has been defined by the court to be ‘‘a
demonstrative word referring particularly to what is pres-
ent or near in place, time or thought or to something just
mentioned, or to be mentioned.’’ (People v. National Box
Co., 248 Tl. 141.) ©

The word ‘‘this’’ used in the instreetion could only refer
to the sixth of the above enumeratec . -dings which imme-
diately preceded it.

Thus the instruction notwithstanding the six enumerated
separate factual findings to be made by the jury directed
the jury to consider only the sixth or last, of such findings
in arriving at their verdict. The jury was thus left to spec-
ulate without any rule of law to guide them, as to what, if
anything, they were to consider in connection with the re-
maining five findings. The instruction in the form tendered
was therefore involved, misleading and unintelligible, and
the court did not err in refusing this instruction.

It is never error to refuse an instruction which is both
involved and misleading. (Duncan v. Kammeier, 206 Il.
App. 207; Alusemeier v. East St. Louis Bridge Co., 210 Tl.
App. 537; Bourland v. Louisville € N. R. Co., 199 Ill. App.
126; Conklin Const. Co. v. Walsh, 131 Ill. App. 609; Busick
v. Ill. Central R. Co., 201 Ill. App. 63.)

(ii)
The use of the word ‘‘dangerous’’ in the instruction was
in error.

The instruction purported to tell the jury that they might
find that the presence of ice and snow on the top of the car,
‘rendered it dangerous for a man to go upon and ride said

9

ear

34

This instruction limited the alleged negligence of the re.
spondent to the alleged ice and snow on the top of the car
which, ‘‘rendered it dangerous for a man to go upon and
ride said car.’’

What conditions rendered the car ‘‘dangerous”’ was not
defined by this instruction or by any other offered or re.
fused instruction.

The petitioner says the respondent did not furnish him
with a reasonably safe place to work, yet the Appellate
Court found that the petitioner did not at any time contend
‘‘the presence of ice and snow is in itself a factual basis
to support a jury’s finding of negligence.’’ The petitioner
does not here challenge that finding. It is therefore diffi.
cult to understand how under such circumstances the mere
presence of ice and snow authorized the jury to find its
presence was ‘‘dangerous.’’

(iii)
The Appellate Court correctly found that the trial court
did not commit error in refusing the instruction.

The Appellate court held the trial court did not err in
refusing the instruction. In this connection that court said:

“The instruction was properly refused on the
further ground that there was no evidence which
tended to show that the command or direction given
by defendant’s conductor to plaintiff to get up on the
box car proximately contributed to cause his injuries.
* * * There is no evidence to show that any circum-
stances or occurrences operated to cause plaintiff’s
injuries other than the ice on the grab iron and run
It is not contended by plaintiff that the presence of ice
and snow is in and of itself any factual basis to re a
@ jury’s finding of negligence. Nor has plaintiff al-
leged or attempted to prove or argue that it was the
duty of the defendant to remove the ice and snow from

the car. Looking at the facis in the light most favor-
able to plaintiff they show a direction to get on car,
which plaintiff did without trouble. Since the presence
of the ice and snow was not negligence and the
original direction of the conductor did not embrace his
descent in the manner in which he elected to descend,
it cannot be said that the record contains any evidence
which tends to show that the command given proxi-
mately contributed to cause plaintiff’s injuries. We
are of the opinion that under the evidence presented
the court properly refused to give the instruction.’’
(Emphasis supplied.)
The foregoing statement demonstrates that the Appellate
court did not err in affirming the action of the trial court

in refusing petitioner’s tendered instruction.

It was a question of fact whether the respondent was negli-
gent in failing to frrnish the petitioner a safe place in
which to perform his work. The evidence on every ma-
terial issue of this question preponderated heavily in
favor of this respondent. The Illinois courts, therefore,
did not err in refusing to set aside the verdict of the jury

finding the respondent not guilty.

As has been suggested above, the material issues in this
ease are divisible into two parts, i. e., (a) the major issue,—
was there ice and snow on the var in question, and, (b) the
supplemental issue,—was the place where the petitioner
alighted from the car properly illuminated.

Without restating the record adverted to above, the evi-
dence on these issues strongly preponderated in favor of
the respondent. These facts the petitioner tacitly concedes
by his failure to contend either before this court or the
Illinois courts, thet the verdict of not guilty, was against
the manifest weight of the evidence.

a

36

All of the evidence on these material issues was before
the jury for their consideration. These issues were ques-
tions of fact to be determined by the jury, based upon their
judgment of the weight of the evidence and the credibility
of the witnesses. This court has repeatedly held that
under such circumstances it wi'l not disturb the verdict of

a jury.!
Conclusion.

We suggest that this case was fairly and impartially sub-
mitted to the jury without prejudicial error in the record in
any of the respects suggested by petitioner.

We further respectfully suggest that there are no preju-
dicial errors of record in this case which would justify this
court in granting certiorari prayed for by the petitioner.
The jury saw and heard the witnesses, judged their credi-
bility, the weight of the evidence, and returned a verdict
for the respondent. The trial court approved this verdict
and overruled petitioner’s motion for a new trial.

Both the Appellate and Supreme courts approved the
action of the trial court in this respect.

1In Tennant v. Peoria & P. U. Ry. Co., 321 U. S. 29, this court said:
(p. 35) ”
“The focal point of judicial review is the reasonableness of the
particular inference or conclusion drawn by the jury. It is the jury,
not the court which is the fact finding body. It weighs the con-
tradictory evidence and inferences, judges the credibility of wit-
nesses, receives expert instructions, and draws the ultimate conclu-
tion as to the facts. The very essence of its function is to select
from among conflicting inferences and conclusions that which it con-
siders most reasonable. (Citing authorities.) That conclusion
whether it relates to negligence, causation or any other factual mat-
ter, cannot be ignored. Courts are not free to reweigh and set
aside the jury verdict because the jury could have drawn different
inferences or conclusions or because the judges felt that other re-
sults are more reasonable.”
ef. Lavender v. Kurn, 327 U. S. 645, 652; Ellis v. Union Pac. R. 0o.,
329 U. S. 649, 652; Myers v. Reading Co., 331 U. S. 477, 485; Wilkerson

v. McCarthy, 336 U. S. 53, 62.

37
It is, therefore, respectfully suggested that the petition
for writ of certiorari be denied.

Respectfully submitted,

Georce F’. Barrett, AND
THEODORE ScHMIDT,
Attorneys for Respondent,
Pennsylvania Railroad Co.
P. J. CRoNnIN,
Rosert EK. Barrett,
Joun W. CosTELLo,
Epwarp WOLFE,
Cf Counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_2287%3A2. Public record. Not legal advice.