Petition for A Writ of — Gooch v. Wilhite

Supreme Court brief1948

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| JUN 10 1950

aeaeeeeiiiii CROP

CLE

IN THE

Supreme Court of the United States

Ocroser TERM, 1949.

ahr sick DR Se aed

PIF REN ROLE TPO

Wituium Epwarp Woops, Petitioner,

yg eS EH

MIRAE EE ae

Sate Re

Tue New York, Cuicaco & Sr. Louis

Rartroap Company, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS AND TO THE

APPELLATE COURT OF ILLINOIS FOR

THE FIRST DISTRICT, AND BRIEF

IN SUPPORT THEREOF.

a eam ee Le

Harry G. Fuerst

ScuwarrzBerc & Barnetr

Attorneys for Petitioner

77 West Washington St.

Harry G. Fuerst Chieago 2, Illinois

Harry P. Warner

Hersert 8S. Oapen

Of Counsel.

816 Connecticut Ave.

Washington 6, D. C.

Press or Byron S. ApAMs, WaSHINGTON, D. C.

eee Te ee 3 rw

INDEX.

Suspsecr Inpex.

Page

Petition for Writ of Certiorari:

I eer rer eee rer eT rreee 2

Fk, RG TINE 655 ss Sea dvks ar Naewee ees 17

BEEs SARTO TF PUIONOE 6g ook co knsveesac via ness 18

IV. Summary Statement of the Matters Involved... 20

V. Reasons for Allowance of Writ... ........... 24

Wek ic cs ed eeacakenssag auksne bese eeaesiee 27

Brief in Bappert of Petition... . 0c. cicsecccacns 29

Ee TE TT TTT TT Cr errr 29

| EEE CUE E TET TTC TET ETE TIT ce 29

Th NE OE Ge CRs io and Can anrenisveneeda 32

4. Goocsontions OF Tirrer «on occ eke cessvnssceses 34

i. PING ii a et Sides 40s dn exe veciees 35

NEG 5 a.54 Lae kddane Caves os tlk sao keeeseeeees 35

I. The adjudication by the highest courts of Illinois

that the Boiler Inspection Act cannot be made the

basis of an action by petitioner is final and is sub-

ject to review on statutory certiorari by this court 36

II. The adjudication by the highest courts of Illinois

on the questions which have arisen in this action

under both the Federal Boiler Inspection Act and

the Federal Safety Appliance Act and the consti-

tutional and statutory questions as to petitioner’s

right to a trial by jury and to the jury’s proper

determination of the federal questions, is arbi-

trary and capricious, and constitutes an abuse of

the judicial power of the state and is subject to

review at this time by this court in the exercise

of its inherent jurisdiction pursuant to Section

1651(a), Title 28, United States Code .......... 39

Index Continued.

Page

Ill. The Appellate Court grossly erred in )

misconceiving and failing properly to

apply the Boiler Inspection Act ......

IV. The Appellate Court grossly erred in

misconstruing and failing properly to

apply the Federal Safety Appliance Act “Age

Petitioner

V. The petitioner is irreparably preju- | mcorporates

diced and damaged by the decision of herem

the Appellate Court and the refusal of | pp. 29 to 51

the Illinois Supreme Court to correct it inclusive,

> of its

VI. The petitioner has been wrongfully de- vie

prived of his right to trial by jury guar- filed

anteed to him by the 7th Amendment of in

the Constitution of the United Staies, cause

and Article II, See. 5 of the Constitu- No. 738

tion of the State of [linois, and has

been denied equal protection of the law

in contravention of the 14th Amend-

ment of the United States Constitution

and subjected to a judicial wrong in

violation of Article II, See. 19 of the

Constitution of the State of Illinois. . J

TABLE oF CasEs.

Affolder v. New York C. & St. L. R. Co., 70 S. Ct. 509

PE ee ee eh amnttak vee Ks couekns<ee<-o0 26, 38

Allen v. United States Fidelity & Guaranty Co., 269

Ne ia eden ihn anne os 26

Anderson v. Baltimore & O. R. Co., 2d Cir. 1937, 89

F. 2d 629 cert. denied 302 U. S. 696.............. 26

Anderson v. Chesapeake & O. R. Co., 352 Tl. 561, cert.

I toa ai win he woke og Ona pae oe 26

Bailey v. Central Vermont Ry. S if > aw 25, 31, 40

Bolan v. Lehigh Valley R. Co., 2d Cir. 1948, 167 F.

A iti dh eile nn iis dcinialnd sae haan alps 24

Brady v. Southern Ry. Co., 320 U. S. 476........ 25, 31, 40

Brown v. Western Railway of Alabama, 338 U. S. 294

17, 25, 26, 30, 40

Burket v. Reliance Bank & Trust Co., 367 Ill. 196.... 30

Sa eae se a a ae

Eg men

Index Continued. iil

Page

Chesapeake & Ohio v. Mihas, 280 U. 8. 102.......... 16

Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44 . 16

Clark v. Hansen, 320 ESE a eye 30

Cohen v. Beneficial Industrial Loan Corporation, 337

ee ee eet er errr eee ree reer 17, 38

Coreoran v. City of Chicago, 373 Ill. 567 ............ 8

C. R. I. & P. Ry. Co. v. People, 217 Ill. 164 ........... 31

Cuneo v. City of Chicago, 272 Ill. 473 ............ 11, 30

Cusson v. Canadian Pac. R ty. Co., 2d Cir. 1940, 115 F.

tg Py ee TET eT eC TEE ITT REL TTT 26

Dedinger v. Vacifie R. Co., 6th Cir. 1930, 39 F. (2d)

Dea eth a Riva ei can tie ASwae bane bares Ke 26

Dinoffria v. Brotherhood of Teamsters, 399 Ill. 804 ..11, 30

Eker v. Pettibone, 7th Cir. 1940, 110 F. (2d) 451°..... 26

Ex Parte Republic of Peru, 318 U. a _ peroe 17, 30

Ex Parte United States, “ee hee 17

Fairport P. & E. R. Co. v. Meredith, 292 U.S. 589 .... 26

Geiger v. Merle, 360 Til. 497 ..........cescceeecveees 31

Goodrich v. Sprague, EE Swe ca at eeeak das ee us 30

Gospel Army v. City of Los Angeles, 331 U. S. 543

17, 32, 38

ee a kg ee) Snr a re ee 24

Hemse v. Mayo, 324 U. &. 42 ... 2... ccc cecscccseces 17, 30

Kluska v. City of Chicago, 97 Ill. App. 665 .......... 26

Lavender v. Kurn, 327 U. AE Oe 26

Lilly v. Grand Trunk Western Ry. Co., 317 U. 8S. 481 24

Louisville & N. R. Co. v. Botts, 8th Cir. 1949, 173 F.

A Cer TT rere er Ere rere 24

Mabee v. Sutliff & Case ae 4 = eoreeeere rer 8

Minneapolis, St. P. & S. S. M. Ry. Co. v. Rock, 279

aici ce daad eRav swe bkene Oo eeeedee 16

Mirich v. Forchner, 312 Ill. 343 ..............eeeeeee 30

Myers v. Reading Co., fo Serer ne 26

Newberry Library v. Board of Education, 387 Ill.

ES 22. kei ce ake nagehawnisdd sceeensn os 8, 38

Oseanyon v. Arms Co., 103 U. S. 261 .............--- 26

Osgood v. Skinner, 211 ff ae er 6

Pennsylvania R. R. Co. v. Auchenbuch, 3rd Cir. 1926,

Se SE kc ceva as usev ree vesectesasneniaca 26

People v. Botulinski, 392 Tl. 212 ..............-+045. 6

People v. Kelley, 367 Ill. 616 ...........--- sees eee 31

People v. Masoro, 301 Tl. 370 .......-..-0ee eee eee 6

Beet lS ae

- scianineniaiaiiomnians a es scaiiiemminiaies ante

iv Index Continued.

Page

Peterson v. General Rug & Carpet Cleaners, 333 II.

PR oo Sais kate yuk seed weu ues aeeUe ese 26

Price v. Johnston, 334 U. S. 266..............ccce0e 17, 38

& Radio Station W O W vy. Johnson, 326 U. S. 126...... 17

4 Republic Natural Gas Co. v. State of Oklahoma, 334

‘ RN G52 5.0 dns Sed Re aw alate aude vane ek eal 17, 38

é Rescue Army v. Municipal Court, 331 U. 8. 549...... 17, 38

4 Roche vy. Evaporated Milk Ass’n, 319 U.S. 21........ 17

4 Roddy v. Armitage Hamlin Corporation, Inc., 401 Til.

4 eh ee 8, 9, 37

% Scott v. Freeport Motor Casualty Co., 379 Ill. 155..... 30

% Sixby v. Chicago City Ry. Co., 260 Ill. 478 .......... 30

% Siegel v. Chicago City Ry. Co., 325 Ill. 43............ 30

a Shaw v. Courtney, 385 Ill. 559 ..................... 8

2 Southern Ry. Co. v. Lunsford, 297 U. 8. 398 ........ 24

2 Spencer v. Chicago City Ry. Co., 366 Ill. 120......... 30 :

& Spotts v. Baltimore & Ohio R. Co., 7th Cir. 1938, 102 F.

i I Meine than oe tu oid cn a bei 6 ok» ora o 26

s Tiller v. Atlantic Coast Line R. Co., 323 U. S. 574..... 24

3 United States Alkali Export Ass’n v. United States,

4 Pi I ta Chek Gis cw Gs dR S eke ead 17, 30-

¢ Urie v. Thompson, 337 U. S. 163.......... 17, 25, 30, 39,

5 Wilkerson v. McCarthy, 336 U.S.53............ 25, 31, 40

P Williams v. New York Central R. Co., 402 Ill. 494... .26, 30

4 Woods v. New York, Chicago & St. Louis R. Co., 339

8 PM EE can cet ita uhbdca st «ctw ic vea aes 3, 26, 29

: Young v. Magee, SUF Ti. GBB onan sce avseccccencss 17, 38

‘ CoNSTITUTIONAL CITATIONS.

x U. S. Constitution, Article III, Sections 1 and 2...... 30

5 United States Constitution, Seventh and Fourteenth

% pp ee ate 11, 12, 13, 14, 25, 30

< Illinois Constitution, Article VI, See. 11............ 11, 30

3 Illinois Constitution, Article II, Section 5. .11, 12, 13, 14, 30

7 Illinois Constitution, Article II, Section 19....11, 12, 13, 14

: Statutes Crrep.

: Federal Employers’ Liability Act, 45 U. S. C., § 51-60,

a Acts of April 22, 1908, c. 149, 35 Stat. 65; August

; 11, 1939, c. 685, 53 Stat. 1404............ 2, 3, 8, 17, 20,

29, 30, 36, 38, 42

BEELER ELLE LAREN Hap a since ne

Supt Bpealt os Soh 4001 a ea ee

SRNR IE BAC, a th ATMA ee

Pha AE ABAD hee

Index Continued. Vv

Page

Federal Boiler Inspection Act, 45 U. S. C. § 23; Acts

of Feb. 17, 1911, ¢. 103, 36 Stat. 913; March 4, 1915,

ce. 169, 38 Stat. 1192; June 7, 1924, ¢. 355, 43 Stat.

RR alge Pp ane Sto 2, 3, 5, 7, 8, 11, 12, 15, 17, 18,

19, 20, 23-24, 29, 35, 36, 37, 38, 39, 42-43

Federal Safety Appliance Acts, 45 U.S. C. § 11; Act of

April 14, 1910, ¢. 160, 36 Stat. 298.......-.. 2, 3, 7, 8, 13,

14, 15, 16, 17, 19, 20, 21, 24, 26, 29, 35, 37, 39, 40, 41, 43

Title 28, United States Code, § 1257(3)....2, 9, 17, 30, 31, 35

Title 28, United States Code, § 1651. .2, 17, 29, 30, 35, 39, 40

Illinois Civil Practice Act, § 75, Smith-Hurd Illinois

Annotated Statutes Ch. 110, §199 .............. 8

Ruues or Interstate CoMMERCE COMMISSION.

Rule 101, C. F. R. Title 49, Parts 1-91, See. 91.101. .18, 24, 43

Rule 129, C. F. R. Title 49, Parts 1-91, Sec. 91.129. .. .6, 18,

24, 42-43

Rule 131, C. F. R. Title 49, Parts 1-91, Sec. 91.139... .6, 18,

24, 44

IN THE

Supreme Court of the Anited States

Ocroser Term, 1949.

No.

Wituim Epwarp Woops, Petitioner,

Tue New York, Cutcaco & Sr. Louis

Rarroap Company, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS AND TO THE

APPELLATE COURT OF ILLINOIS FOR

THE FIRST DISTRICT.

To the Honorable, The Cluef Justice of the United States,

and the Honorable Associate Justices of the Supreme

Court of the United States.

Your petitioner, Wmi1am Epwarp Woops, prays that a

Writ of Certiorari issue to review the final judgment and

order of the Supreme Court of Illinois entered on March

14, 1950 (KE. R, 319-320) in said Court in case No.

* References (R.) are to the transcript of record on the leave to

appeal proceeding, bound in the customary brown binding, except

where otherwise indicated by (E. R.) in which instances the refer-

ences are to the transcript of record, bound in gray, on the writ of

error proceeding.

PRE a Perey BT eS pie EROS GSS

MAES

31428, entitled William Edward Woods, Plaintiff-in-Error

v. The New York, Chicago and St. Louis Railroad Com-

pany, a corporation, Defendant-in-Error, dismissing writ

of error to the Appellate Court of Illinois of the First Dis-

trict sued out of the Supreme Court of Illinois, by your

petitioner on December 31, 1949; and to review the order

(R. 357) of the Supreme Court of Illinois, entered March

16, 1950 (R. 357) in said Court in case No. 31429, entitled,

William Edward Woods, Petitioner, v. The New York, Chi-

cago and St. Louis Railroad Company, a corporation,

Respondent, dismissing your petitioner’s petition to the

Supreme Court of Illinois (R. 1-42) for leave to appeal

from the judgment (KE. R. 271-2; R. 3818-9) of the

Appellate Court of Illinois for the First District, entered

November 21, 1949, reversing the judgment (E. R.

264-5, R. 311-2) of the Superior Court of Cook County,

Tllinois, in a cause entitled, William Edward Woods, Plain-

tiff, v. The New York, Chicago and St. Louis Railroad Com-

pany, a corporation, No. 47-S-1155, entered May 7, 1948

for the sum of $40,000.00 in favor of petitioner against the

respondent on the verdict of the jury in an action brought

under the Federal Employers’ Liability Act (45 U. S. C.

Sees. 51 et seq.), the Federal Boiler Inspection Act (45

U. S. C. See. 23), and the Federal Safety’ Appliance Act

(45 U. S. C. Sec. 11); and to review the saic. judgment of

the Appellate Court of Illinois for the ™irst District, as

may be the appropriate remedy in the circumstances of

this action.

JURISDICTION.

The jurisdiction of this Court is invoked under Title 28,

United States Code, Section 1651(a) and 1257 (3).

A fundamental principle embodied in the Federal Boiler

Inspection Act, underlying its prime and most important

objective and presenting federal questions of substance,

has been finally decided in this cause by a state court of

FMS PRR AOS SIC WY DOR ER pare 2 ee er al 4 Ape al toe

ae SOLIS AA SAAN Ahab RENT Ie OUR aR R ho ——— —

last resort in a way clearly not in accord with applicable de-

cisions of this Court. This flagrantly erroneous ruling has

been broadcast to the state and nation under Rule 36 of the

Rules of the Appellate Court of Illinois for the First Dis-

trict, which provides that that Court ‘‘shall designate for

publication in full in Appellate Court Reports, only such

written decisions of such court as contain a discussion of a

new or doubtful question of law, or involve the application

of rules of law to a novel state of fact, * * *’’ The Appellate

Court has so designated its opinion in this case, and the

opinion, which is bound to bring about much abortive liti-

gation, is officially reported in Woods v. New York, Chicago

é& St. Louis R. Co., 339 Ill. App. 132. The Supreme Court

of Illinois has refused to expunge, review or reverse the

ruling of the Appellate Court, although petitioner, in order

to protect his constitutional and federally created statu-

tory rights, has exhausted every proper remedy in the

state courts of Illinois in seeking vindication and enforce-

ment thereof.

This case offers an exceptional opportunity for this

Court to implement its announced policy that the federally

created rights and duties involved in this important type

of litigation must be uniformly administered throughout

the nation in all courts, state as well as federal.

This action arises and was determined under the pro-

visions of the Federal Employers’ Liability Act (49

U.S. CG. Sees. 51 et seq.), the Federal Boiler Inspection Act

(45 U. S. C. See. 23), and the Federal Safety Appliance

Act (45 U. S. C. See. 11).

The respondent not only admits its liability under the

Federal Employers’ Liability Act, as stated in the opinion

of the Appellate Court (R. 38), but in the trial court it

also admitted and expressly refrained from contesting its

liability under the Safety Appliance Act (R. 55-7, 73,

84, 260-5).

The undisputed evidence, notwithstanding the cavalier

and inaccurate ‘‘brushed off’? (R. 38) statement of facts

contained in the Appellate Court’s opinion, established, or

at least the jury was fully warranted in finding, the follow-

ing facts:

At about ten minutes before midnight on November 14,

1946 (R. 65, 249), in respondent’s dark, unlit Fort Wayne

railroad yard (R. 66, 250), petitioner, in the proper per-

formance of his duties as a brakeman on respondents inter-

state freight train (R. 70), was caught between the side of

the locomotive tender on which he was riding as it pro-

ceeded backward on a main track at a speed of five to eight

miles an hour (R. 70, 190, 197), and the side of a coal ear

standing on a spur track admittedly too close to and foul-

ing the main track, and was crushed as he was rolled for

a distance of five to ten feet or more, in the narrow space

three or six to not more than ten inches wide, between the

side of the tender and the side of the coal car. (R. 63-74,

180, 189, 250).

The tender was equipped with a fixed-focus back-up or

rear headlight (R. 178, 190, 214-5), which petitioner testi-

fied was dim and out of foeus and looked like it had been

smashed and the reflector was off, and threw the rays of

its 100 watt bulb up in the air at an angle of about 45 de-

grees, instead of down along the track, as intended and de-

signed. Petitioner testified (and in some aspects, he was

corroborated rather than contradicted by respondent’s wit-

nesses) that there was no light along the tracks for a dis-

tance of 50 or 75 feet immediately in back of the tender,

leaving that area in complete darkness, although the reflec-

tion of the light was sufficient to enable one to see an object

as big as a box car in the further distance. (R. 66, 67, 93)

The main track was straight until just about the place

where the spur track branched off to the southwest, at which

place the main track curved toward the northwest, the effect

being that while the locomotive and tender approached the

scene of the accident on the straight track, the coal car was

straight ahead and its juxtaposition to the main track was

not discernible because of the defective condition of the rear

. —_——_—ees sical az

eS heheh eet pe oi CN. RR RANG . :

YAR asthma ere Ten ew mate Pe TOA ie iE Mis Aes nsf

light, until the tender and locomotive had negotiated the

curve to some extent. By that time the coal car was in the

area of darkness. (R. 44, 175, 177)

Petitioner testified that, although he was watching in the

direction in which the locomotive and tender were backing

because the exact location of the freight train to which they

were to couple was unknown, he could not and did not see

the fouling coal car until it loomed faintly out of the dark-

ness only ten or twelve feet away. Fearing that he might

be thrown under the wheels of the moving engine if he at-

tempted to get off, he endeavored to get around the corner

of the tender to avoid being crushed to death, but before he

could get to a place of safety, he was caught and injured

as before stated. (R. 70, 71, 91)

The jury was instructed that under the Federal Boiler In-

spection Act it was the respondent’s duty to furnish a loco-

motive, its boiler, tender and all parts and appurtenances

thereof, in proper condition and safe to operate in the ser-

vice to which the same are put and that may be operated

in active service without unnecessary peril to life or limb,

and that if the jury should find from the greater weight of

the evidence that respondent failed to equip its locomotive

and tender with an efficient and properly focused light and

to equip such locomotive and tender with such a light

caused, or proximately contributed to cause, unnecessary

peril to life or limb of petitioner and made the locomotive

unsafe to operate in the service tu which the locomotive

and tender were put, it might then find that the respondent

had violated the Federal Boiler Inspection Act, and that if

it should further find that the furnishing of such a locomo-

tive and tender with a light that was dim and out of focus

directly and proximately caused injuries to be sustained by

petitioner, then, even though the jury might find from the

greater weight or the preponderance of the evidence that

petitioner was guilty of contributory negligence, the Fed-

eral Boiler Inspection Act denies to respondent the defense

of contributory negligence on the part of petitioner, and

SWE N Dales digas Wes BA REL RE AERA Da RE Ie RS . ,

such contributory negligence, if any, would not act as a bar

or diminish the right of petitioner to recover full damages

for such injuries, if any, he has sustained. (R. 253-254)

The respondent did not tender any request for any in-

struction to the effect that damages should be diminished

by the jury in proportion to the amount of negligence at-

tributable to petitioner if the jury found that petitioner was

guilty of any contributory negligence. Under Illinois prac-

tice the only duty of the Court is to give or refuse such in-

structions as are asked by the parties, and it is not the duty

of the court to prepare or give instructions on its own mo-

tion, and error cannot be predicated on a proposition of

law as to which no instruction has been requested by the

complaining party. Osgood v. Skinner, 211 Ill. 229; People

v. Masoro, 301 Il. 370; The People v. Botulinski, 392 Til. 212.

Nevertheless, the Appellate Court, although according to

its opinion

‘fan issue of fact to be determined by the jury was ere-

ated if this alleged defect in the light can be made the

basis of an action under the Boiler Inspection Act (R.

41),”’

held that neither Rule 129 nor Rule 131 of the Interstate

Commerce Commission required any rear light because at

the time of injury the locomotive was in road service, and

was backing to couple to its train and move it to Bellevue,

Ohio, stating:

‘‘Its movements were within the exception stated in

Rule 129 (b), supra, and no headlight was required.

Defendant being under no obligation under the Boiler

Inspection Act to provide a light on the rear of the

tender, it is not liable under that act if a light installed,

but not required by the act, was not properly focused.

No claim can be made that the projection of the rays

of this light into the air created an ‘unnecessary peril

to life or limb’ in the operation of the engine (R. 42).”’

The Appellate Court therefore held that it was error re-

quiring a reversal of the judgment to instruct the jury that

the plaintiff was entitled to full damages if the jury found

ROS/ aN “> RS ee

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ROME aS ES

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that the defective condition of the headlight contributed to

cause petitioner’s injuries (R. 42, Instruction 6, R. 253-4). .

The Appellate Court also held that it was reversible error

similarly to instruct the jury that there could be no deduc-

tion of damages on account of contributory negligence on

the part of plaintiff, if the jury found that the fouling coal-

car was equipped with an inefficient hand brake which per-

mitted it to drift from the safe position it occupied when

a regular yard brakeman was seen setting the brake on it

about three hours before the accident, to the fouling posi-

tion, although that issue was not contested, but was, in

effect, admitted by the respondent at the trial, and in any

case was proved by amply sufficient evidence. (R. 38-42,

55-7, 71-4, 254-5)

The Appellate Court remanded the cause for further pro-

ceedings in accordance with its opinion, the effect being

that petitioner has finally and irrevocably been deprived of

the benefits of the Boiler Inspection Act, and has also been

deprived of the benefits of the Safety Appliance Act, not-

withstanding the admission by respondent and the uncon-

tested proof of its violation of that Act.

Under the law of Illinois, the right of petitioner to re-

cover under the Boiler Inspection Act is forever foreclosed.

The adjudication on that legal issue is not subject to fur-

ther review by any state court. No amount or character

of other, different or additional evidence on any new trial

ean alter the basis or change the result of the Appellate

Court’s decision with respect to petitioner’s right to the

benefit of the Boiler Inspection Act. It was stipulated, and

it was the fact (R. 170) that at the time plaintiff was in-

jured, he (necessarily including the locomotive)

‘<was on his way to couple onto a train, or part of a

train, standing in the yard of the defendant”’

and it is beyond dispute that the train was to proceed from

Fort Wayne, Indiana to Bellevue, Ohio.

Of course, in Illinois, as elsewhere, the trial court is bound

to conform to the Appellate Court’s opinion on remand for

Pe BPR Fu TRH INE NRELN ENNIS ALA BROT 5

KAAS

Ra ee Send Bee

PETES

a new trial. With certain exceptions not applicable here,

the judgments and decrees of the Appellate Court of Illinois

are final (Illinois Civil Practice Act § 75, Smith-Hurd Illi-

nois Annotated Statutes Ch. 110 § 199). Corcoran v. City

of Chicago, 373 Ill. 567; Shaw v. Courtney, 385 Ill. 559;

Mabee v. Sutliff € Case Co., 404 Ill. 27.

The complaint in this action alleges, and the facts war-

rant, three distinct rights of recovery, with potentially

(even if unlikely) different measures of damages:

(1) A conceded and admitted right of recovery un-

der the Federal Employers’ Liability Act, based on ad-

mitted and proven gross and multiple negligence of the

respondent, subject to diminution of the damages in

the proportion to the amount of negligence, if any, at-

tributable to petitioner ;

(2) A right of recovery under the Federal Boiler In-

spection Act, where negligence, either of petitioner or

respondent, is not an element, and full damages are re-

coverable; and

(3) A right of recovery under the Federal Safety

Appliance Act, which was admitted, and proved ex-

pressly without objection, at the trial, where questions

of negligence and contributory negligence likewise do

not affect the measure of damages, which are recover-

able in full.

The Supreme Court of Illinois has held in recent cases,

Newberry Library v. Board of Education, 387 Tll. 85 (1944)

and Roddy v. Armitage Hamlin Corporation, Inc., 401 Tll.

605 (1949), that where two separate rights, although di-

rected to the same end, are asserted and one is finally dis-

posed of, while the other remains pending, the order dis-

posing of the one is a final order within the purview of IIli-

nois appellate procedure and is reviewable by the Illinois

Supreme Court on leave granted by the Appellate or Su-

preme Court which is necessary in all cases of appeal to

the Illinois Supreme Court, except in certain specified cases

ee ee ee ge a EP ag a A RSS ln a fn tern k ao aye en ee

—

not pertinent here. But in the case at bar, which to all

practical intents and purposes is similar to the Illinois cases

cited above, and to others referred to therein, leave to ap-

peal has been denied by both the Appellate Court and, in

effect, by the Illinois Supreme Court.

The judgment and opinion of the Appellate Court, and

the refusal of the Illinois Supreme Court to review them,

foreclose for all time petitioner’s right of recovery under

the Boiler Inspection Act and constitute the finality with

respect to petitioner’s right of recovery under that Act

which enables this Court to take jurisdiction under the pro-

visions of Title 28, United States Code, Section 1257(3).

Roddy vy. Armitage Hamlin Corp., supra and cases cited

therein.

Under the familiar principles which this Court has always

applied where jurisdictional basis exists as to any one

branch of a case, it ean decide all other federal questions

presented by the record, including the question whether the

evidence and proceedings at the trial warranted the instruc-

tion to the jury that petitioner was entitled to full damages,

if the jury found that a violation of the hand-brake provi-

sion of the Federal Safety Appliance Act contributed to his

injuries.

This petition relates to the same action as that involved

in cause No. 738, October Term, 1949, in this Court, en-

titled, The People of the State of Illinois on Relation of

William Edward Woods, Petitioner, v. John M. Touhy, Pre-

siding Justice, Grover C. Niemeyer and Michael Feinberg,

Justices, Constituting the First Division of the Appellate

Court of Illinois for the First District, Respondents.

That is an original action in the Supreme Court of Tlli-

nois for leave to file a petition for a peremptory writ of

mandamus directing the judges of the Appellate Court to

expunge the judgment entered by them reversing the judg-

ment of the Superior Court of Cook County in favor of

petitioner and to affirm the Superior Court judgment.

There can be no question, and the respondents, appear-

ing by the same attorneys who represented the railroad

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company in the appellate court, do not question, that the

order of the Illinois Supreme Court dismissing the petition-

er’s petition for leave to file the application for a writ of

mandamus is a final order, and that important federal ques-

tions subject to review on certiorari by this Court are pre-

sented, unless such review is interdicted because the.dismis-

sal of the petition for mandamus rested exclusively on non-

federal grounds, a proposition answered in petitioner’s re-

ply brief in cause No. 738,

Your petitioner, on page 6 of the petition in cause No.

738, requested that decision thereon be deferred and con-

sidered with the applications contained herein, unless this

Court should be willing to and could on the petition in cause

No. 738, order certified to it one or both of the records pre-

sented with this petition, which contain all of the proceed-

ings had in all of the courts below, and the consideration

of cause No. 738 has been deferred and will be considered

by this Court concurrently with this petition in accordance

with petitioner’s motion to that effect, filed May 18, 1950.

In order to protect petitioner’s constitutional and fed-

erally created statutory rights and to exhaust every proper

remedy in the state courts of Illinois in seeking vindication

and enforcement thereof, which have been irrevocably vio-

lated by said courts, unless this Court intervenes and cor-

rects the grave errors into which they have fallen, it was

deemed advisable and necessary to, and your petitioner did,

on December 31, 1949, file in the Illinois Supreme Court

three separate proceedings:

(1) The mandamus proceeding, which is the subject

of the petition in cause No. 738 in this Court; and

(2) The petition to the Illinois Supreme Court for

leave to appeal, and (3) The praecipe for Writ of Er-

ror, which are the subjects of this petition.

Under Illinois appellate practice, jurisdiction of the Tlli-

nois Supreme Court to review on writ of error a constitu-

tional question derives directly from the Constitution of

the State (Illinois Constitution, Art. VI, See. 11) and is not

affected by any statutory limitation limiting the jurisdic-

tion of that Court with respect to finality of the judgment

to be reviewed, and where the constitutional question first

arises when the judgment of the Appellate Court is en-

tered, the right of the Illinois Supreme Court to review such

question by writ of error is well settled, even though such

constitutional questions were not raised in the Appellate

Court. Dinoffria v. Brotherhood of Teamsters, 399 Ill. 304,

pp. 306-7 , cert. denied 335 U. S. 815; Cuneo v. City of Chr-

cago, 272 Ill. 473, among many others cited in the annexed

brief. The decision of such constitutional questions by the

Illinois Supreme Court is necessarily final.

On the writ of error, petitioner assigned the following er-

rors and reasserts them here:

1. The judgment of the Court of Appeals of Illinois for

the First District denies to petitioner the right to a trial

by jury of the issues of fact as to whether the locomotive,

its tender, parts and appurtenances, including the rear

light on the tender, were in proper condition and safe to op-

erate in the service to which they were put without unneces-

sary peril to life or limb as required by the provisions of

the Federal Boiler Inspection Act (45 U.S. C. See. 23; 36

Stat. 913; 38 Stat. 1192; 43 Stat. 629) and as to whether

the injuries sustained by petitioner were caused or con-

tributed to by the unlawful use by the respondent of an

unsafe locomotive and appliances in violation of the provi-

sions of said act, contrary to the provisions of Article 2,

Sees. 5 and 19 of the Constitution of the State of Illinois

and the Seventh Amendment of the Constitution of the

United States of America, and in violation of the right to

a jury trial of such issues secured and guaranteed to the

petitioner thereby, and deprives the petitioner of property

without due process of law and of equal protection of the

laws contrary to and in violation of the provisions of the

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Fourteenth Amendment of the Constitution of the United

States of America.

2. The judgment of the Appellate Court of Illinois for

the First District denies to petitioner the right to the

jury’s determination heretofore properly made in the ren-

dition of the verdict on which judgment was duly entered

in the Superior Court of Cook County, Illinois, on May 7,

1948, of the issues of fact as to whether the locomotive, its

tender, parts and appurtenances, including the rear light

on the tender, were in proper condition and safe to operate

in the service to which they were put without unnecessary

peril to life or limb as required by the provisions of the

Federal Boiler Inspection Act (45 U.S. C. Sec. 23; 36 Stat.

913, 38 Stat. 1192; 43 Stat. 629) and as to whether the

injuries sustained by petitioner were caused or contributed

to by the unlawful use by the respondent of an unsafe

locomotive and appliances in violation of the provisions

of said act, contrary to the provisions of Article 2, Sees. 5

and 19 of the Constitution of the State of Illinois and the

Seventh Amendment of the Constitution of the United

States of America, and in violation of the right to a jury

trial of such issues secured and guaranteed to the peti-

tioner thereby, and deprives the petitioner of property

without due process of law and of equal protection of the

laws contrary to and in violation of the provisions of the

Fourteenth Amendment of the Constitution of the United

States of America.

3. The Appellate Court of Illinois for the First District

has erroneously decided federal questions, namely, whether

the locomotive and tender and all parts and appurtenances

thereof, including the rear light of the tender, were in

proper condition and safe to operate in the service to

which they were put without unnecessary peril to life or

limb as required by the provisions of the Federal Boiler

Inspection Act (45 U. S. C. See. 23; 36 Stat. 913; 38 Stat.

1192, 43 Stat. 629) and as to whether the injuries sustained

— Bei Dats BRIE YS

by petitioner were caused or contributed to by the unlawful

use by the respondent of an unsafe locomotive and

appliance in violation of the provisions of said act, con-

trary to the provisions of said act and to the applicable

and controlling federal decisional law interpreting and

applying said act.

4. The judgment of the Appellate Court of Illinois for

the First District denies to petitioner the right to a trial

by jury of issues of fact as to whether the coal car was

equipped with an efficient hand brake as required by the

provisions of the Federal Safety Appliance Act (45

U. S. C. See. 11; 36 Stat. 298) and as to whether the in-

juries of petitioner were caused or contributed to by the

unlawful use by the respondent of a coal car not equipped

with an efficient hand brake, in violation of the provisions

of said Act, contrary to the provisions of Article 2, Secs.

5 and 19 of the Constitution of the State of Illinois and

the Seventh Amendment of the Constitution of the United

States of America, and in violation of the right to the peti-

tioner thereby, and deprives the petitioner of property

without due process of law and of equal protection of the

laws contrary to and in violation of the provisions of the

Fourteenth Amendment of the Constitution of the United

States of America.

5. The judgment of the Appellate Court of Illinois for

the First District denies to petitioner the right to the

jury’s determination heretofore properly made in the

rendition of the verdict on which judgment was duly

entered in the Superior Court of Cook County, Illinois, on

May 7, 1948, of the issues of fact as to whether the coal car

was equipped with an efficient hand brake as required by

the provisions of the Federal Safety Appliance Act (45

U. S. C. See. 11; 36 Stat. 298) and as to whether the in-

juries of petitioner were caused or contributed to by the

unlawful use by the respondent of a coal car not equipped

with an efficient hand brake, in violation of the provisions

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of said Act, contrary to the provisions of Article 2, Sees. 5

and 19, of the Constitution of the State of Illinois and the

Seventh Amendment of the Constitution of the United

States of America, and in violation of the right to a jury

trial of such issues secured and guaranteed to the peti-

tioner thereby, and deprives the petitioner of property

without due process of law and of equal protection of the

laws contrary to and in violation of the provisions of the

Fourteenth Amendment of the Constitution of the United

States of America.

6. The judgment of the Appellate Court of Illinois for

the First District denies to petitioner the right to a trial

by jury of issues of fact as to whether the coal car was

equipped with an efficient hand brake as required by the

provisions of the Federal Safety Appliance Act (45

U.S.C. See. 11; 36 Stat. 298) and as to whether the in-

juries of petitioner were caused or contributed to by the

unlawful use by the respondent of a coal car not equipped

with an efficient hand brake in violation of the provisions

of said Act and contrary to the provisions of said Act and

to the applicable and controlling Federal Decisional Law

interpreting and applying said Act.

7. The judgment of the Appellate Court of Illinois for

the First District is contrary to the law.

8. The judgment of the Appellate Court of Illinois for

the First District is contrary to the evidence.

9. The decision, opinion and judgment of the Appellate

Court of Illinois for the First District, erroneously invade

and usurp the province of the jury in undertaking to re-

determine, contrary to the permissible finding of the jury,

the issues whether the locomotive, its tender, parts and

appurtenances, including the rear light of the tender, were

in proper condition and safe to operate in the service to

which they were put without unnecessary peril to life or

limb, and whether the injuries sustained by petitioner were

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caused or contributed to by the unlawful use by the re-

spondent of an unsafe locomotive and appurtenances in

violation of the provisions of the Federal Boiler Inspection

Act (45 U.S. C. See. 23; 36 Stat. 913, 38 Stat. 1192; 43

Stat. 629).

10. The decision, opinion and judgment of the Appellate

Court of Illinois for the First District, erroneously invade

and usurp the province of the jury in undertaking to re-

determine, contrary to the permissible finding of the jury,

the issues whether the hand brake on the coal car was efii-

cient and whether the injuries sustained by petitioner were

caused or contributed to by the unlawful use by the re-

spondent of a coal car not equipped with an efficient hand

brake in violation of the provisions of the Federal Safety

Appliance Act (45 U.S. C. See. 11; 36 Stat. 298).

11. The decision, opinion and judgment of the Appellate

Court of Illinois for the First District, violate the Federal

Rule respecting the amount and sufficiency of evidence to

entitle petitioner to the benefits and protection of the Fed-

eral Boiler Inspection Act (45 U. S. C. See. 23; 36 Stat.

913; 38 Stat. 1192; 43 Stat. 629), and to the decision by

jury of all issues of fact relating thereto.

12. The decision, opinion and judgment of the Appellate

Court of Illinois for the First District, violate the Federal

Rule that the assertion of federal rights by the petitioner

under the provisions of the Federal Boiler Inspection Act

may not be defeated by any device of local practice and

that uniformity in adjudication of federally created rights

under said Act must be accorded by all courts in conform-

ity with the federal decisional law.

13. The decision, opinion and judgment of the Appellate

Court of Illinois for the First District, violate the federal

rule respecting the amount and sufficiency of evidence to

entitle petitioner to the benefits and protection of the Fed-

eral Safety Appliance Act (45 U. S. C. Sec. 11; 36 Stat.

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298), and to the decision by jury of all issues of fact relat-

ing thereto.

14. The decision, opinion and judgment of the Appellate

Court of Illinois for the First District, violate the Federal

Rule that the assertion of federal rights by the petitioner

under the provisions of the Federal Safety Appliance Act

may not be defeated by any device of local practice and

that uniformity in adjudication of federally created rights

under said Act must be accorded by all courts in conform-

ij ity with the federal decisional law.

| Usually the record, on denial by the Illinois Supreme

FY Court of leave to appeal, is returned to the Appellate Court

3 on the entry of its order denying leave, and the writ of cer-

* tiorari properly issues out of this Court to the Appellate

: Court of Illinois. Minneapolis, St. P. d S. 8S. M. Ry. Co. v.

4 Rock, 279 U. S. 140; Chesapeake & Ohio v. Mthas, 280 U.S.

3 102; Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U.S. 44. In

this instance, however, the record remains lodged in the Ili-

nois Supreme Court, although the Appellate Court did, of

necessity and in fact, pass upon the constitutional questions

presented by the assignment of errors in the writ of error

proceeding, because they were asserted in the Appellate

Court as some of the grounds for petitioner’s application

in that Court for a rehearing and for leave to appeal and for

a Certificate of Importance (R. 321-341, 345).

It would therefore seem that the writ of certiorari should

issue to the Illinois Supreme Court in this particular case

with respect to all three proceedings in that Court. Such

a writ would suffice to bring the entire record before this

Court.

To avoid burdening this Court unnecessarily by repeti-

tion, and since this Court will consider cause No. 738 con-

currently with this petition, petitioner begs leave to refer to

the petition, brief and reply brief in cause No. 738 to the

same extent and with like effect as if that proceeding and

this proceeding were one and the same, as in effect they are,

but without limiting petitioner or this Court from consid-

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| ering the complete records in all three proceedings in all of

| the courts below, which are now before this Court.

Petitioner submits that this Court has the authority and

jurisdiction to review all three proceedings in the Illinois

Supreme Court, and the judgment of the Appellate Court

on a single writ of error directed to the Illinois Supreme

Court, or, if need be, also on writ of error directed to the

Appellate Court of Illinois for the First District, not only

under the provisions of Title 28, United States Code, See-

tion 1257(3), but also in the exercise of this Court’s common

law jurisdiction to issue all writs necessary and appropri-

ate in aid of its jurisdiction agreeable to the usages and

principles of law, as authorized by Section 1651(a), Title

28, United States Code.

Cases believed to sustain the jurisdiction of this Court

are: Brown v. Western Railway of Alabama, 338 U. S.

294; Urie v. Thompson, 337 U. 8S. 163; United States Alkali

Export Assn. v. United States, 325 U.S. 196; House v. Mayo,

324 U.S. 42; Ex Parte Republic of Peru, 318 U.S. 578;

Rescue Army v. Municipal Court, 331 U. S. 549; Gospel

Army v. City of Los Angeles, 331 U. 8. 548; Republic Nat-

ural Gas Co. v. State of Oklahoma, 334 U.S. 62: Price vy.

Johnston, 334 U. S. 266; Young v. Ragen, 337 U. S. 235;

Radio Station WOW vy. Johnson, 326 U. S. 126: Roche v.

Evaporated Milk Assn., 319 U. S. 21; Ex Parte United

States, 287 U. S. 129; Cohen v. Beneficial Industrial Loan

Corporation, 337 U. S. 541.

II.

STATUTES INVOLVED.

This action arose and was determined under the pro-

visions of the Federal Employers’ Liability Act, (45

U.S.C. See. 51 et seq.), the Federal Boiler Inspection Act,

(45 U.S.C. See. 23), and the Federal Safety Appliance Act,

(45 U.S.C. See. 11), all of which are set forth in the ap-

pendix.

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Also involved are Rules 101, 129 and 131 of the Inter-

state Commerce Commission (C.F.R. Title 49, Parts 1-19,

$§ 91.101, 91.129, 91.131), which are likewise set forth in the

appendix.

III.

QUESTIONS PRESENTED.

1. Does the Federal Boiler Inspection Act itself, unaided

and unrestricted by any order of the Interstate Commerce

Commission, require that all parts and appurtenances of a

locomotive and tender used on the line of an interstate

common earrier by railroad be maintained at all times in

proper condition and safe to operate in the service to which

same are put without unnecessary peril to life or limb?

2. Can a violation of the Federal Boiler Inspection Act

be predicated only on a violation of an order of the Inter-

state Commerce Commission?

3. Do the orders of the Interstate Commerce Commis-

sion, requiring a part or appurtenance—such as a rear head-

light—to be provided and maintained in good condition on a

locomotive, exempt the carrier from violation of the Fed-

eral Boiler Inspection Act when such part or appurtenance

is in bad order and by reason thereof causes or contributes

to an injury to its interstate employee, except when the

injury is suffered at the precise time and under the exact

circumstances and in connection with the momentary par-

ticular use to which the locomotive is then being put, con-

templated by a narrow and strict interpretation of the lan-

guage of the Interstate Commerce Commission orders?

4. Is a rear headlight permanently affixed to the rear of

a tender of a locomotive, a part and an appurtenance of the

locomotive within the purview and command of the Federal

Inspection Act itself, and required thereby to be in proper

condition and safe to operate in the service to which the

same is put without unnecessary peril to life or limb, irre-

spective of any order which the Interstate Commerce Com-

mission has promulgated on the subject?

5. Does the Boiler Inspection Act require only that a

locomotive and its parts be in such condition that no addi-

tional perils be ‘‘created,’’ or does it require that they be in

such condition that all unnecessary perils be avoided?

6. When a cause is tried to a jury on the uncontested

theory and premise that the coal car was equipped with an

inefficient hand brake which, although set, permitted it to

drift from a safe place to a place fouling the main track, and

substantially undisputed evidence to that effect is admitted

expressly without objection, is the Appellate Court author-

ized to reverse a jury’s verdict upon the ground that it was

error to allow full damages if the jury found that the hand

brake on the coal car was inefficient and permitted it to drift

from a safe to an unsafe place and thereby contributed to

cause the injuries?

7. Can the right to a trial by jury, and to a jury’s proper

determination, of the issues of fact with respect to viola-

tion by the carrier of the Federal Safety Statutes, and the

desirable uniformity in the determination and enforcement

of federally created rights under such statutes in conform-

ity with the federal decisional law, be denied and thwarted

in the state courts, by the limitations, restrictions and tech-

nicalities of the local law and the rules of court relating

to and regulating practice and procedure governing appeals

and other forms of review?

8. Has petitioner been denied the right to trial by jury,

and to the jury’s proper determination, of the issues in this

action?

9. Is there any evidence in the record which would war-

rant a jury to find that any negligence on the part of peti-

tioner contributed to cause his injuries and authorize any

reduction of the damages to which he is entitled?

10. If there be any such evidence, is not any negligence

which could be attributed to petitioner so infinitesimal and

unsubstantial compared to the gross multiple negligence of

respondent as to make the principle of de minimis appli-

cable?

IV.

SUMMARY STATEMENT OF THE MATTERS

INVOLVED.

Petitioner, employed by the respondent as a brakeman

on an interstate freight train, brought an action against

the respondent in the Superior Court of Cook County, Illi-

nois, under the provisions of the Federal Employers’ Lia-

bility Act (45 U.S.C. Sees. 51 et seq.), the Federal Boiler

Inspection Act (45 U.S.C. Sec, 23) and the Federal Safety

Appliance Act (45 U.S.C. See. 11), to recover damages for

personal injuries sustained by petitioner about ten minutes

before midnight on November 14, 1946, in respondent’s

dark, unlit railroad yard in Fort Wayne, Indiana. (R. 49-

55.)

Petitioner duly demanded a trial by jury (R. 49) and

recovered judgment, entered on the jury’s verdict, for

$40,000.00, on May 7, 1948. (R. 311-2)

The respondent admits liability under the Federal Em-

ployers’ Liability Act. (R. 38)

At the trial respondent admitted and expressly refrained

from contesting its liability under the Federal Safety Ap-

pliance Act. (R. 55-57, 73, 84, 260-5)

Petitioner, while riding on the stirrup on the engineer’s

side at the rear of the tender as it proceeded backward on

a main track at 5 to 8 miles an hour in the darkness of mid-

night in respondent’s unlit railroad yard, was caught be-

tween the side of the tender and the side of the coal car

standing on a spur track, admittedly too close to and foul-

ing the main track. Petitioner was unable to see the dan-

gerous position of the coal car until he was within 10 or 12

feet of it, due to the defective condition of the rear light

on the tender, which, according to his testimony, was dim

and out of focus and looked like it had been smashed and

the reflector was off, and which cast its dim rays up in the

air at an angle of about 45° instead of along the tracks, as

it was intended and designed to do, leaving the area

for 50 to 75 feet immediately in back of the tender in com-

plete darkness, although the reflection of the light was suf-

ficient to enable one to see an object as large as a box car

in the further distance. (R 66, 67, 93)

The engineer, respondent’s witness, who was looking in

the direction of travel out of the cab window some forty

feet (the length of the tender) behind petitioner, testified

that he first saw the dangerous position of the coal car when

the rear of the tender was 70 to 80 feet from the coal car,

and that, although the engine was just drifting or coasting

along with the throttle shut off and with no steam in the

cylinders, and he could have stopped within 30 feet, he did

nothing about stopping the engine and just continued to

drift along. (R. 194-8)

The movement was stopped with the corner of the coal

car right at the cab, according to petitioner (R. 74, 91-4),

or about half way of the tank, according to respondent’s

witness, the fireman (R. 190). In other words, the locomo-

tive travelled 90 to 120 feet after the engineer saw the dan-

gerous position of the coal car, although it could have been

stopped within 30 feet.

At the trial respondent did not contest its liability under

the Federal Safety Appliance Act.

Respondent had taken petitioner’s deposition ten months

before the trial, and was therefore well aware of his claims

and prospective testimony with respect to the inefficient

nand brake on the coal car which permitted it to drift from

a safe position on the spur track to the dangerous position,

fouling the main line. (R. 84)

In opening respondent’s case to the jury, its counsel who

had personally taken petitioner’s deposition and has wide

experience in this type of litigation, stated:

oD)

‘*Now I notice what Mr. Fuerst said about how the

ear got there. I don’t know if it was put there or

whether it had drifted there.

‘*In other words, if the brakes were defective in hold-

ing the ear. But I do know the car was too close to

this track to clear a man riding on it. In other words

a man could get in there, but he would have to hunch

in close. * * *’? (R. 56)

Petitioner testified that on his way to report for duty |

around 9:15 or 9:30 P.M. on the night he was injured, he |

saw the coal car on the spur track in the clear, about ten |

feet in from the switch, and a regular yard brakeman was

setting the brake on it (R. 71-4); and that when brakes are |

set on ears and they are functioning efficiently, they hold

the cars in place where they are braked, and if they are not

functioning efficiently, the car will drift on a slope.

Petitioner further testified, expressly without objeetion

which was withdrawn after it had been sustained by the

trial court (R. 73) as follows:

*Q. What would you say, from the point where the

brake was applied, where you saw it applied, where

this car was in the clear, to where the car was when you i

started to work with your engine and your body came

in contact with that car, whether the brake was effi-

cient?”?

“Mr. Moir: TI object to that, if your Honor please.

“The Court: Objection sustained,

“Mr. Fuerst: May I respeetfully—

‘‘Mr. Moir: Just a minute, if your Honor please. I

withdraw the objection. Proceed.

“The Court: All right.

“Mr. Moir: Have the question read.

(Question read.)

‘“*A, No, I would say it wasn’t.

‘*Mr. Fuerst: When brakes are set on cars and they

are working efficiently, do they permit the cars to drift?

‘*A. No, sir.’’ (R. 73-4)

Respondent offered no evidence to contradict this testi-

mony. It did not call the yard brakeman who set the brake

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on the coal car before the accident, nor any one who had

anything to do with moving it from its dangerous position

and setting the brake after the accident, and it is inconceiv-

able that the car was left in its dangerous position fouling

the main track after it had caused injury to one of respon-

dent's employees.

Respondent produced no profile map of the spur track, as

it would have done if there were any honest question about

the direction of the slope.

The fact of the matter is perfectly apparent from the en-

tire record that the case was tried on the undisputed theory

that the hand brake on the coal car was inefficient and per-

mitted the car to drift from a safe to a dangerous position,

and that petitioner was entitled to full damages for such

injuries as the jury found he sustained. The proposition

that respondent was entitled to a reduction of damages be-

cause of any contributory negligence on the part of peti-

tioner is afterthought culled from fine-combing of the record

with legalistic legerdemain after the trial was concluded

and solely for purposes of appeal. As before stated, respon-

dent did not even tender a request for any instruction that

the damages should or could be diminished on account of

any contributory negligence on the part of petitioner.

The evidence does not warrant any finding of negligence

on the part of petitioner. The most that could be said is

that he should have had better night vision, enabling him

to see better in the darkness than either he, or the engineer

or fireman could do, or that he should have had better judg-

ment in the emergency with which he was suddenly faced,

and should have tried to get off the moving engine in the

darkness in the short space of 10 or 12 feet.

If any negligence could be attributed to him on either

score, petitioner submits that any such negligence is so

infinitesimal compared to the gross multiple negligence of

the respondent, as to invoke the principle of de minimis,

Nevertheless, the Appellate Court, holding that petitioner

was not entitled to the protection of the Federal Boiler In-

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spection Act, and that the evidence and proceedings did not

warrant the instruction to the jury that petitioner was en-

titled to full damages if the jury found that respondent’s

violation of the Federal Safety Appliance Act contributed

to petitioner’s injuries, has reversed the judgement in favor

of the plaintiff and remanded the case for retrial of the

questions concerning the nature and extent of petitioner’s

injuries and the amount of damages to which he is entitled,

without the benefit of the protection of the Boiler Inspection

Act in any event, or of the Safety Appliance Act if addi-

tional evidence of the inefficiency of the hand brake on the

coal car is not presented, and permitting respondent to seek

a reduction of damages on account of contributory negli-

gence of petitioner which was not claimed or sought by any

requested instruction at the trial under review.

REASONS FOR ALLOWANCE OF WRIT.

1. The decision of the Appellate Court which the Su-

preme Court of Illinois has refused to review, denudes the

Federal Boiler Inspection Act of its primary, positive and

clear command, and substitutes therefor rules of the Inter-

state Commerce Commission too narrowly construed, and

is capricious, arbitrary and void and contrary to the provi-

sions of the act and to the controlling federal decisional law.

Federal Boiler Inspection Act, 45 U. S. C. See. 23; 1. C. C.

Rules 101, 129, 131, C. F. R. Title 49, Parts 1-91, Sees. 91.1

pp. 1236; Tiller vy. Atlantic Coast Line Railroad, 323 U. S.

574; Southern Ry. Co. v. Lunsford, 297 U. S. 398; Lilly v.

Grand Trunk Western Railroad Co., 317 U. S. 481; Louis-

vile € N. R. Co. vy. Botts, 173 F. (2d) 164; Bolan v. Lehigh

Valley R. Co., 167 F. (2d) 934; Hines v. Smith, 275 Fed. 766.

2. The right to a trial by jury and to the jury’s proper

determination of the issues with respect to violation of the

provisions of the Federal Boiler Inspection Act and the

easual connection of such violation with the injuries sus-

RPO IME REL LENG PIELER EEE EIN LOGE DBA NGS ED IE SETI em Dg 4a

SIRI TSA Ga CAPE ERE

tained by the petitioner has been finally and irrevocably

denied the petitioner by the decisions of the Appellate

i Court of Illinois and of the Supreme Court of Illinois in

| violation of the petitioner’s right to such jury trial under

: the provisions of the 7th amendment of the Constitution of

the United States, and petitioner has been denied equal pro-

' tection of the laws contrary to the provisions of the 14th

j amendment of the Constitution of the United States and to

: the federal decisional law governing and controlling the

i determination and enforcement of the relator’s federally

4 created rights. Wilkerson vy. McCarthy, 336 U.S. 53; Bailey

v. Central Vermont Ry., 319 U.S. 350; Brady v. Southern

Ry. Co., 320 U. 8. 476; Urie v. Thompson, 337 U. 8. 163;

Brown v. Western Railway of Alabama, 338 U. S. 294,

1 3. The decisions of the State courts of Illinois in this

cause violate the rule of desirable and essential uniformity

in the adjudication of federally created rights and decide

federal questions contrary to the applicable and controlling

; federal decisions. Brown v. Western Railway of Alabama,

338 U.S. 294; Brady v. Southern Ry. Co., 320 U.S. 476.

4. The publie at large, including travellers on the rail-

roads and on the public highways, as well as all railroad

employees and common carriers by railroad engaged in in-

F terstate commerce, will be irreparably injured and dam-

aged, and their rights destroyed, and endless abortive liti-

gation will be engendered, if the opinion of the Appellate

Court of Illinois for the First District, which the Supreme

Court of Illinois has refused to review, be permitted to

stand. The opinion of the Appellate Court has been or-

dered to be published in full under Rule 36 of that court

providing for the publication of only such decisions ‘as

contain a discussion of a new or doubtful question of law,

or involve the application of rules of law to a novel state

of facts, or decide a new or unsettled question of practice’’

and will be cited and considered as authority for the non-

liability of a carrier which permits a rear headlight or any

= PSR SS? Ge Dr sy BE PCL MREES EG PN AERA RIDLEY YEAS iy BEN ND eB Mara om tC keegan | ei Ltd ekg gD

other part or appurtenance of a locomotive to be out of or-

der and ineffective unless an order of the Interstate Com-

merce Commission requires the safety device to be in good

order at the particular time and for the particular use to

which the locomotive is then being put. Rule 36 of the

Appellate Court of Illinois for the First District; Woods v.

New York, Chicago & St. L. R. Co., 339 Il. App. 182, 88

N. E. (2d) 740; Fairport P. & E. R. Co. v. Meredith, 292

U.S. 589.

5. The opinion of the Appellate Court, which the Su-

preme Court of Illinois has refused to review, with respect

to the violation of the Federal Safety Appliance Act is

contrary to the controlling federal decisions with respect

to the sufficiency of evidence in order to make an issue of

fact for a jury determination and is contrary to the law

of the State of Illinois and to the fair administration of

justice in any jurisdiction with respect to trial of a cause

involving uncontested issues. Affolder v. New York, C. &

St. L. R. Co., No. 200, Oct. Term 1949, decided March 13,

1950, 70 S. Ct. 509; Lavender v. Kurn, 327 U.S. 645; Myers

v. Reading Co., 331 U. S. 477; Cusson v. Canadian Pacific

Ry. Co., 115 F. (2d) 480; Eker v. Pettibone, 110 F. (2d)

451; Spotts v. Baltimore & Ohio R. Co., 102 F. (2d) 160;

Anderson v. Baltimore & O. R. Co., 89 F. (2d) 629, certio-

rari denied 302 U. S. 696; Didinger v. Pacific R. Co., 39 F.

(2d) 798; Pennsylvania R. R. Co. v. Auchenbach, 16 F. (2d)

550; Brown v. Western Railway of Alabama, 338 U.S. 294;

Williams v. New York Central R. Co., 402 Ill. 494; Oscan-

yan v. Arms Co., 103 U. S. 261; Anderson v. Chesapeake &

O. R. Co., 352 Til. 561; Allen v. United States Fidelity &

Guaranty Co., 269 Ill. 234; Peterson v. General Rug &

Carpet Cleaners, 333 Ill. App. 47; Kluska v. City of Chi-

cago, 97 Ill. App. 665.

TRIES Und MAA aeetner sas: ae

PRAYER.

WHEREFORE your petitioner prays that a Writ of Cer-

tiorari issue out of this Court directed to the Supreme

Court of the State of Illinois, commanding said Court to

certify and send to this Court the record of the proceed-

ings in case No. 31428 in the Supreme Court of Illinois,

entitled William Edward Woods, Plaintiff-in-Error v. The

New York, Chicago and St. Louis Railroad Company, a

corporation, Defendant-in-Error, and in case No. 31429 in

said Supreme Court of Illinois, entitled William Edward

Woods, Petitioner, v. The New York, Chicago and St. Louis

Railroad Company, a corporation, Respondent, as well as

the record of proceedings in case No. 31427 in said

Supreme Court of Illinois, entitled, The People of the State

of Illinois on Relation of William Edward Woods, Peti-

tioner v. John M. Touhy, Presiding Justice, Grover C.

Niemeyer and Michael Feinberg, Justices, Constituting the

First Division of the Appellate Court of Illinois for the

First District, Respondents, in accordance with the peti-

tion heretofore filed in this Court, in cause No. 738, Octo-

ber Term, 1949, and, if need be, that Writ of Error issue

out of this Court directed to the Appellate Court of Illinois

for the First District commanding said Court to certify

and send to this Court the record of proceedings in ease

No. 44745 in said Appellate Court of Illinois, entitled

William Edward Woods, Plaintiff, v. The New York, Chi-

cago & St. Louis Railroad Company, a corporation, De-

fendant, to the end that said causes may be reviewed and

that the proceedings therein be determined by this Court

as of right and justice ought to be done, and that the judg-

ment of the Appellate Court of Illinois for the First Dis-

trict be reversed and the judgment of the Superior Court

aA a < cm oe ae RAPES ES RE END ZR REE EIT aA IE NRE ERE CO RR Re “is

Habe thi

of Cook County, Illinois entered therein on May 7, 1948

in favor of petitioner and against respondent for the sum

of $40,000.00 and costs be affirmed.

Witui1am Epwarp Woops,

Petitioner.

By Harry G. Fuerst

Scuwartzserc & Barnetr

Attorneys for Petitioner

77 West Washington Street

Chicago 2, [linois

Harry G. Fuerst

Harry P. WarNER

Hersert 8S. Ocpen

Of Counsel

816 Connecticut Ave.

Washington 6, D. C,

June 10, 1950

- EE ELSE ESE TLE LL LILLE OE LIOR LLL PSNI SECA,

Cea Oe tas aS

BRIEF IN SUPPORT OF PETITION FOR

CERTIORARI.

OPINION BELOW.

The opinion of the Appellate Court of Illinois for the

First District is officially reported in Woods v. New York,

Chicago & St. Lowis R. Co., 339 Ill. App. 132. It is also re-

ported in 88 N. E. (2d) 740.

f The Supreme Court of Illinois has delivered no opinion.

Its order dismissing the Writ of Error sued out by peti-

tioner is contained in the Writ of Error Record, p. 319. Its

order dismissing petitioner’s petition for leave to appeal

is contained in the Leave to Appeal Record, p. 357.

JURISDICTION.

The grounds upon which the jurisdiction of this Court is

invoked are:

: 1. Under Section 1651(a) of Title 28 of the United States

Code, and in the exercise of the inherent jurisdiction of this

} Court to issue all common law writs necessary and appro-

priate in aid of its jurisdiction agreeable to the uses and

principles of law, this Court has jurisdiction, by such writ

as may be needful to that end, to review the federal ques-

i tions involved in petitioner’s claim of federally created

j rights and the federal questions herein arising under the

Federal Employers’ Liability Act (45 U. S. C. Sees. 51 et

seq.), the Federal Boiler Inspection Act (45 U. 8S. C. See.

‘ 23) and the Federal Safety Appliance Act (45 U.S. C. See.

11), and to restore and preserve to petitioner his right to

a trial by jury and to the jury’s proper determination of

the issues arising under the Federal Safety Statutes as

guaranteed to him by the Constitution of the State of Tli-

nois and of the United States, and as provided as a part and

¥ pS ia . .

bn ia sath SETI SAT ANT RAR NRC B/N ere ME aE SO RSET RR ARNE

parcel of the remedy afforded railroad workers under the

Federal Employers’ Liability Act, and to enforce the rule

announced by this Court that uniformity in the adjudication -

of the federally created rights under the federal statutes

involved herein is desirable and essential, whether the en-

forcement of such rights be sought in the state or federal

courts. U.S. Constitution, Art. IIT, §§ 1, 2; 28 U. S. ¢.

$1651; Brown v. Western Railway of Alabama, 338 U.S.

294; Urie v. Thompson, 337 U. S. 163; United States Alkali

Export Ass’n. v. United States, 325 U. S. 196; House v.

Mayo, 324 U.S. 42; Ex Parte Peru, 318 U.S. 578.

2. Under Section 1257(3) of Title 28 of the United States

Code this Court has statutory jurisdiction to review the

final order of the Supreme Court of Illinois, the highest

court of that state, dismissing the Writ of Error sued out

by petitioner and to review the federal questions involved

in petitioner’s claim of federally created rights under the

federal statutes above referred to, including petitioner’s

right to a trial by jury and to the jury’s proper determina-

tion of the issues arising under the Federal Safety Statutes,

in accordance with the method provided thereby, and by the

Constitutions of the State of Illinois and of the United

States, where a trial by jury of the issues has been prop-

erly demanded, and the question of petitioner’s claim to

equal protection of the law guaranteed to him by the United

States Constitution. U.S. Constitution, Seventh and Four-

teenth Amendments; Illinois Constitution, Art. 2, See. 5;

Art. VI, See. 11. 28 U. S. C. § 1257(3); Dinoffria v.

Brotherhood of Teamsters, 399 Tl. 304, cert. denied 335

U.S. 815; Mirich v. Forchner Contracting Co., 312 Tll. 343,

Siaby v. Chicago City Ry. Co., 260 Ill. 478; Siegel v. Chicago

City Ry. Co., 325 Ill. 48; Spencer v. Chicago City Ry. Co.,

366 Ill. 120; Burket v. Reliance Bank & Trust Co., 367 TI.

196; Goodrich v. Sprague, 376 Ill. 80; Scott v. Freeport

Motor Casualty Co., 379 Ill. 155; Cuneo v. City of Chicago,

272 Ill. 473; Wiliams v. New York Central Railroad Co.,

402 Ill. 494; Geiger v. Merle, 360 Ill. 497, Clark v. Hansen,

; 320 Tl. 480; C. R. 7. & P. Ry. v. People, 217 Ill. 164; People

F v. Kelly, 367 Ill. 616; Wilkinson v. McCarthy, 336 U .S. 53;

Brady v. Southern Ry. Co., 320 U.S. 476; Bailey v. Central

Vermont Ry. Co., 319 U.S. 350.

3. Under Section 1257(3) of Title 28 of the United States

Code, this Court has jurisdiction to review the final order

of the Suprenie Court of the State of Illinois, dismissing

petitioner’s petition to that Court for leave to appeal and

the judgment of the Appellate Court of Illinois for the First

e District, reversing the judgment of the Superior Court of

F Cook County and remanding the cause to that Court for

A further proceedings in conformity with the opinion of the

Appellate Court. Under that opinion, petitioner is forever

barred from any relief rnder the Federal Boiler Inspec-

j tion Act, as far as the courts of Illinois are concerned, even

4 though the jury conced«dly was warranted in finding that

g the light on the rear of the tender was defective and out of

i focus, and failed to functio. as it was intended to function,

g namely to light the way as the isecomotive backed through

f the dark, unlit railroad yard and te avoid the very peril

that befell petitioner.

This Court, by its recent decisions, has erased the twilight

zone of distinction between substantive rights and pro-

cedural remedies in enforcing the relief Congress, in enact-

: ing the Federal Employers’ Liability, Boiler Inspection,

and Safety Appliance Acts, and the amendments of Au-

gust 11, 1939, intended to accord railroad workmen em-

ployed in the hazardous undertaking of operating the dan-

gerous instruments of interstate railroad common carriers,

and has made it crystal clear that substance, and not form,

determines the question of finality of state court decisions

subject to review by this Court.

Archaic technicalities of common law pleading and out-

moded legalistic concepts of cause of action and finality

of judgments have been swept into discard by this Court

in its determination to get directly at the heart of legal

controversies and dispense justice realistically rather than

theoretically. In the formulation of the Federal Rules of

Civil Procedure this Court has entirely and with delibera-

tion discarded the phrase ‘‘cause of action’? and adopted

the term, ‘‘right to relief’? which is the real objective of all

litigation and is free from the mass of scholasticism which

has long enshrouded the concept sought to be expressed. In

Gospel Army v. City of Los Angeles, 331 U. S. 548, it was

said:

‘Increasingly this Court has become less formal in

the matter of final judgments. It is no longer the rule

that the face of the judgment is determinative of

whether it is final. Today the test is not whether under

local rules of practice the judgment is denominated

final * * * but rather whether the record shows that

the order of the Appellate Court has in facet fully ad-

judicated rights and that that adjudication is not sub-

ject to further review by a state court. * * *”’

By that test, the judgment of the Appellate Court and

the order of the Illinois Supreme Court finally and fully

adjudicate petitioner’s right to any relief under the Fed-

eral Boiler Inspection Act. He has exhausted all proper

remedies open to him under the state law, and that adjudi-

cation is not subject to further review by any state court.

The date upon which the order of the Supreme Court of

Illinois entered March 14, 1950, dismissing the Writ of Er-

ror and the order of said Court entered March 16, 1950, dis-

missing the petition for leave to appeal and the judgment

of the Appellate Court of Illinois for the First District en-

tered November 21, 1949, sought to be reviewed, became

final on the adjournment of the March 1950 Term of the

Supreme Court of Illinois on March 17, 1950.

STATEMENT OF THE CASE.

The nature of the case has been substantially set forth

in the petition herein and in the petition and brief in cause

No. 738, and need not be repeated.

However, with the complete record now before the Court,

attention should be called to additional facts,

eat terete ene ee : . —_

Petitioner was 28 years of age (R. 57), was 5’ 714” tall,

and weighed 150 pounds (R. 102). He is married and has

one son, and his wife and son, and his wife’s parents, are

dependent on him for support (R.96). He was raised in an

orphanage and all of the work he has done since leaving

the Orphans Home was hard laborious physical work (R.

57-63, 95-96). He was earning approximately $300.00 a

month at the time he was injured (R. 62).

The chief issues litigated at the trial were the nature

and extent of the injuries he sustained when he was crushed

and rolled in the narrow space 3 or 6 to not more than 10

inches wide between the side of the tender and the side of

the coal car for a distance of 5 feet, according to his testi-

mony (R. 74) or ten or more feet, according to the testi-

mony of respondent’s witness, Eberhardt (R. 183-5), who

was the only other witness besides petitioner to testify on

the subject of what occurred to petitioner. There is ut-

terly no justification in the record for the Appellate Court’s

statement that petitioner was ‘‘brushed off’’ the engine

(R. 38).

The principal dispute with respect to petitioner’s injuries

was whether admittedly existing pelvic fractures, which re-

spondent’s doctor, who attended petitioner after the rail-

road accident, testified would disable a man from engaging

in heavy labor work (R. 173), occurred when petitioner

was crushed and rolled between the tender and coal car, or

had oceurred in an automobile accident in 1942 (R. 58-61,

81-104, 144-164, 199-217). It is not disputed, however, that

petitioner for three years before the railroad accident did

constantly engage in heavy labor work (R. 59-62, 83-80,

95-96), and before being employed by respondent he was

examined by one of the Company surgeons and found to be

physically fit (R. 61, 98-103).

Petitioner admittedly suffered a dislocated right shoulder

and an injury to his left ankle to which the Company sur-

geon applied a splint and which the jury was warranted in

finding consisted of a fracture involving the astragalus or

ankle joint (R. 169).

EPEAT ABSENT RGAS SR Dae ER RR NORE ES Re

Petitioner, so the jury was justified in finding, has been

totally and permanently incapacitated by the injuries sus-

tained in the railroad accident from doing the only kind

of work he has engaged in since leaving the orphanage.

His loss of earnings in the four years elapsing since the

accident until this Court can act in this case will approxi-

mate $14,000.00.

Respondent’s witness, the engineer, testified that if the

back-up light was working efficiently, a car could be seen

eight hundred feet away (R. 198). However, he also testi-

fied that although looking back in the direction in which the

locomotive was backing, the rear of the tender was between

70 or 80 feet from the coal car when he first saw that the

coal car might not clear. He could have stopped within less

than half that distance, but he did not do anything—just

kept drifting along (R. 193-8). The fireman, also respon-

dent’s witness, testified that the back-up light on the engine

involved was like all the rest of the engines and one could

see 100 or 150 feet when the light was lit, but the first he

saw of the coal car was when he was about 75 feet from it

(R. 189-193).

The other brakeman, Eberhart, who was riding on the

ladder leading to the gangway into the cab right under the

engineer, testified that he did not see the coal car at all

until after the accident and that all that he observed about

the back-up light was that it was lit. He crawled up n the

cab when the engineer shouted some kind of a warning,

and when the engine stopped he came down between the

tank and the car and had to squeeze through by turning

sideways, the clearance between the car and the engine

being approximately six inches (R. 181-8, 249-250).

SPECIFICATION OF ERRORS.

The Supreme Court of Illinois erred:

1. In dismissing the writ of error sued out by petitioner,

and in thereby denying to petitioner his right to a trial by

ROL ER INR IE ROO ate ren eating tse cepama

jury of the issues with respect to the questions whether

respondent’s violations of the Federal Boiler Inspection

Act and the Federal Safety Appliance Act caused or con-

tributed to cause petitioner’s injuries, and to the jury’s

proper determination of those questions.

2. In dismissing petitioner’s petition to the Supreme

Court of Illinois for leave to appeal from the judgment of

the Appellate Court of Illinois for the First, and in refus-

ing to reverse said judgment and to affirm the judgment of

the Superior Court of Cook County, Illinois, in favor of

petitioner and against respondent.

ARGUMENT.

Summary.

Petitioner begs leave to refer to his brief in cause No.

738 and requests that it be read in support of this petition.

In further support of this petition petitioner contends:

The adjudication by the highest courts of Illinois that

the Boiler Inspection Act cannot be made the basis of an

action by petitioner is final and is subject to review on

statutory certiorari by this court, under Section 1257(3),

Title 28, United States Code. Furthermore this court has

potential jurisdiction on the ultimate conclusion of this

action to review the questions which have arisen under both

the Federal Boiler Inspection Act and the Federal Safety

Appliance Act and the constitutional questions presented

with respect to petitioner’s right to a trial by jury and to

the jury’s proper determination of such issues, irrespec-

tive of the technical finality of the adjudication at this time,

and under its inherent common-law jurisdiction pursuant to

the provisions of Section 1651(a), Title 28, United States

Code, it can do so now. This court should accept jurisdic-

tion of this case now in the interest of justice and the en-

forcement of the rule of desirable and essential uniformity

BR pe 00 ccs espiimns FOI ESE ARB RRR ATER PIS EAS IE OE RIAN GS EE ETS SET RR he)

ied

in the adjudication of federally created rights, and to avoid

inflicting on petitioner irreparable damage and injury in the

enforcement thereof. It is common knowledge that the most

powerful bludgeon which parties, who are legally and mor-

ally obligated to make compensation for injuries negligently

inflicted on a working man, whose daily labor is the daily

bread for himself and his family, hold over their heads,

is delay. No truer axiom was ever uttered than ‘‘ Justice

delayed is justice denied’’. In this case the respondent is

admittedly liable for injuries which the jury was entitled

to and did find were serious, grave, permanent and dis-

abling. On the undisputed facts it is submitted that no jury

would, or should, find that any negligence contributing to

his injuries is attributable to petitioner. If any such neg-

ligence could be attributed to him it could only be because

he failed or was unable to see the dangerous position of the

fouling coal car before he did see it, or because he failed

to take some other action in the emergency suddenly con-

fronting him, and any such negligence on his part would be

so small in proportion to the gross and multiple negligence

of the respondent that there could be no reasonable ex-

pectation of any materially different result of the advan-

tage to respondent on any new trial and that the principle

of de minimis should be applied.

The Adjudication by the Highest Courts of Illinois that the

Boiler Inspection Act Cannot Be Made the Basis of an

Action by Petitioner is Final and is Subject to Review

on Statutory Certiorari by this Court.

The complaint alleges, and the facts warrant, three dis-

tinct rights to relief for petitioner’s grave and serious in-

juries for which the jury, after a fair trial, awarded him

$40,000.00, caused by the admitted negligence of the respon-

dent: (1) A right to damages under the Federal Em-

ployers’ Liability Act, based on the admitted and proven

PER AS RAINS LUT PY EAL OP Stave Ta Eh OAL wstoeetea

‘s y = Y 3 SROE EPR SI ERIS 8 SORT I TEN See We er ue te as eR yet I— —

¥ SRR ea EST emcee ee ne re cmt main age

SPRLRID A a tae

—

gross and multiple negligence of the respondent, subject

to reduction in the proportion to the amount of negligence,

if any, attributable to petitioner; (2) A right to full dam-

ages under the Federal Boiler Inspection Act; and (3) A

right to full damages under the Federal Safety Appliance

Act.

The Appellate Court of Illinois has held as a matter of

law that petitioner is not entitled to recover any damages

under the Federal Boiler Inspection Act, even thergh the

rear headlight or back-up light on the tender was defective

by reason of which petitioner was unable to see the danger-

ous position of the coal car in time to avoid injury. The

basis of that ruling is that the orders of the Interstate Com-

merece Commission do not require any light in view of the

use to which the locomotive was being put at the moment

of injury.

As has been shown in petitioner's brief in cause No. 738,

pp. 29-40, that ruling is grossly and patently erroneous, and

is contrary to all applicable decisions of this Court and

other courts, and finds no support in any authoritative de-

cisions anywhere.

Petitioner has exhausted every proper remedy in the

courts of Hlinois to correct that ruling. He petitioned the

Appellate Court for a rehearing (R. 821-329). On denial

of that petition (R. 319), petitioner applied to the Appel-

late Court for leave to appeal to the Supreme Court of

Illinois and for a Certificate of Lnportance (R. 342-7). On

denial of such leave by the Appellate Court (R. 319), peti-

tioner instituted in the Supreme Court of Illinois the three

proceedings which are the subject of this petition and of

the petition in cause No, 738.

The adjudication is not subject to further review by any

state court on this or any other record. The basis of the

adjudication that petitioner is not entitled to the benefit of

the Federal Boiler Inspection Act is not subject to change

by any other, different or additional evidence on any new

trial.

Mererasescmenenmwmnn SPM ARR Py IEEE ORE RAED art RE

Sg te ir os

Under the law of Illinois, as the Supreme Court of that

state has held in Newberry Library v. Board of Education,

387 Ill. 85 and Roddy v. Armitage Hamlin Corporation,

Inc., 401 Ill. 605, an order or judgment disposing of one of

two causes of action, even though both be directed to the

same relief, is final.

And this Court, looking to the realities and not the an-

cient legal theories and nomenclature of a situation, ap-

plies the practical test whether in fact rights have been

fully adjudicated in determining the question whether the

adjudication is final and therefore subject to review by this

court. Gospel Army v. City of Los Angeles, 331 U. 8. 5438;

Rescue Army v. Municipal Court, 331 U. S. 549; Republic

Natural Gas Co. v. State of Oklahoma, 334 U. S. 62; Price v.

Johnston, 334 U. S. 266; Young v. Ragen, 337 U. 8. 235;

Cohen v. Beneficial Industrial Loan Corporation, 3837 U. 8.

541; Affolder v. New York C. & St. L. R. Co., 70 8, Ct, 509,

The right of petitioner to relief under the Federal Boiler

Inspection Act has been fully adjudicated by the courts of

the State of Illinois. Nearly four years have elapsed since

petitioner was incapacitated through the admitted nogli-

gence of the defendant from earning a livelihood for him-

self and family in his accustomed work, and it is not unlikely

that as many more years will be consumed in litigation if

respondent pursues its past delaying tacties in making com-

pensation for its admitted wrong. The expense? of litiga-

tion appears to be no deterrent for the respendent in re-

sisting petitioner’s just claim against it.

Any negligence which ean conceivably be attributed to the

petitioner (and it is submitted that none can, sould, or will

be) in so infinitesimal on the undisputed faciS in propor-

tion to the gross and multiple negligence of the respondent,

that no materially different result can reasonably be ex-

pected on any new trial on the basis of a reduction of dam-

ages on account of any contributory negligen®e which any

jury might attribute to petitioner.

On the undisputed facts, in view of respondent’s admitted

liability under the Federal Employers’ Liability Act, a new

trial would, in effect, be merely an assessment of damages

to which petition is entitled, giving respondent the oppor-

tunity of seeking to have petitioner’s damages reduced on

account of contributory negligence on his part, which the

respondent did not seek by any request for instructions to

the jury on the trial under review, and it is submitted that

any deduction which might conceivably be made on that

account would be so small and so inconsequential that fur-

ther delay in requiring respondent to compensate peti-

tioner for the injuries it negligently caused him to suffer

would not be warranted and would be most unjust.

II.

The Adjudication by the Highest Courts of Illinois on the

Questions Which Have Arisen in this Action Under

Both the Federal Boiler Inspection Act and the Federal

Safety Appliance Act, and the Constitutional and Stat-

utory Questions as to Petitioner's Right to a Trial by

Jury and to the Jury's Proper Determination of the

Federal Questions, is Arbitrary and Capricious, and

Constitutes an Abuse of the Judicial Power of the

State, and is Subject to Roview at this Time by this

Court in the Exercise of Its Inherent Common-Law

Jurisdiction Pursuant to Section 1651(a), Title 28,

United States Code.

This Court has potential jurisdiction to review the fed-

eral questions which have arisen under both the Federal

Boiler Inspection Act and the Federal Safety Appliance

Act and the federal questions as to the petitioner’s right to

jury determination of the issues involved in them. The

adjudication of these questions by the Appellate and Su-

preme Courts of Illinois, is so manifestly contrary to the

applicable decisions of this Court, that it is an abuse of the

judicial power of the State. It subjects petitioner to a judi-

ss PIN Ney LETRA NS rN oN Sak

RR ES UY Re eee

cial wrong out of all proportion to the theoretical right of

respondent to seek a reduction of damages for the injuries

for which it is admittedly liable to petitioner under the

Federal Employers’ Liability Act, although it did not seek

any such reduction on the trial under review. While under

the local practice in Illinois the adjudication of these fed-

eral questions by the Appellate and Supreme Court is the

law of the case and is not open to further review in any state

court, this Court, as it did in Urie v. Thompson, 337 U. 8S.

163, could review them years hence if petitioner should re-

ceive a less favorable judgment on a retrial, If he should

obtain a larger verdict and the judgment entered on it be

allowed to stand, he would not be heard to complain and the

opinion of the Appellate Court would for all time be de-

struetive of the desirable and essential uniformity in the

adjudication of such federal questions whieh this Court

has said must be observed in all courts, state as well as fed-

oral, Brown v, Western Railway of Alabama, 338 U, 8,

204, Brady v. Southern Ry, Co,, 820 U.S. 476; Urie vy,

Thompson, 887 U, 8, 168, |

The decision of the state courts deprives the petitioner of

his right to a trial by jury of the issues with respect to

respondent's violation of the Federal Safety Statutes, and

to the jury’s proper determination of such issues, which

this Court has repeatedly and with increasing insistence

said is part and parcel of the remedy afforded railroad

workers by the Federal Employers’ Liability Act, and is

being restored by the recent decisions of this Court in this

important class of cases, Bailey v, Central Vermont Ry. |

319 U.S. 350; Wilkerson v. McCarthy, 336 U. 8. 53, |

In these circumstances, it is submitted that this Court ean

and should exercise its inherent common law jurisdiction _

to issue all writs which are necessary and appropriate in |

aid of its jurisdiction as authorized by Section 1651(a) of |

Title 28, United States Code, if there be any doubt about

the technical finality of the judgment and orders sought to

ETN IER ISN AO Ae rt teh BEN NT Aha te

ee 41

be reviewed. To all intents and purposes they are final

as to petitioner’s right to recover under the Federal Safety

Statutes in the state courts of Illinois. They are indefensi-

bly wrong and petitioner has no remedy except at the hands

of this Court.

Respectfully submitted,

Harry G. Furrsr

Scuwarrzperc & Barnerr

Attorneys for Petitioner

77 West Washington St.

Chicago 2, Illinois

Harry G. Furrsr

Harry P, Warner

Hersert S, Oanen

Of Counsel,

816 Connecticut Ave,

Washington 6, D, ©,

June 10, 1950

APPENDIX.

Federal Employers’ Liability Act (45 U.S.C. See. 51):

‘‘Eivery common carrier by railroad while engaging

in commerce between any of the several states * * *

shall be liable in damages to any person suffering

injury while he is employed by such carrier in such

commerce, * * * for such injury * * * resulting in whole

or in part from the negligence of any of the officers,

agents, or employees of such carrier, or by reason of

any defect or insufficiency, due to its negligence, in

its cars, engines, appliances, machinery track, road-

bed, works, boats, wharves, or other equipment.’’ Apr.

22, 1908, c. 149, See. 1, 35 Stat. 65; Aug. 11, 1939, e¢.

685, Sec. 1, 53 Stat. 1404.

Federal Employers’ Liability Act (45 U.S.C. Sec. 53):

‘In all actions hereafter brought against any such

common carrier by railroad under or by virtue of any

of the provisions of this chapter to recover damages for

personal injuries to an employee, or where such in-

juries have resulted in his death, the fact that the

employee may have been guilty of contributory negli-

gence shall not bar a recovery, but the damages shall

be diminished by the jury in proportion to the amount

of negligence attributable to such employee; Provided,

That no such employee who may be injured or killed

shall be held to have been guilty of contributory negli-

gence in any case where the violation by such common

carrier of any statute enacted for the safety of em-

ployees contributed to the injury or death of such

employee. Apr. 22, 1908, c. 149, Sec. 3, 35 Stat. 66.”’

Federal Boiler Inspection Act (45 U.S.C. See. 23):

‘*Tt shall be unlawful for any carrier to use or permit

to be used on its line any locomotive unless said loco-

motive, its boiler, tender, and all parts and appurte-

nances thereof are in proper condition and safe to

operate in the service to which the same are put, that

the same may be employed in the active service of such

carrier without unnecessary peril to life or limb, and

ER PRINS ES RII Se TI NERS MOIS eS

unless said locomotive, its boiler, tender, and all parts

and appurtenances thereof have been inspected from

time to time in accordance with the provisions of sec-

tions 28, 29, 30, and 32 of this title and are able to

withstand such test or tests as may be prescribed in

the rules and regulations hereinafter provided for.

Feb. 17, 1911, c. 103, Sec. 2, 36 Stat. 913; Mar. 4, 1915,

c. 169, Sec. 1, 38 Stat. 1192; June 7, 1924, c. 355, Sec.

2, 43 Stat. 659.’

Ts ei aS Bk Boh" A OT 7

Federal Safety Appliance Act (45 U.S.C. See. 11):

‘*Tt shall be unlawful for any common carrier subject

to the provisions of sections 1-16 of this title to haul,

or permit to be hauled or used on its line, any car

subject to the provisions of said sections not equipped

with appliances provided for in sections 11-16 of this

title, to wit: All cars must be equipped with secure

sill steps and efficient hand brakes; * * * Apr. 14, 1910,

c. 160, Sec. 2, 36 Stat. 298.’’

PROS NESS Ce BE PLES SS eee

Rules of Interstate Commerce Commission.

Rule 101. The railroad company will be held re-

sponsible for the general design, construction, and

maintenance of locomotives and tenders under its

control. (Code of Federal Regulations, Title 49, Parts

1-91, See. 91.101, p. 1236)

Rule 129. (a) Locomotives used in road service.—

Each locomotive used in road service between sunset

and sunrise shall have a headlight which shall afford

sufficient illumination to enable a person in the cab of

such locomotive who possesses the usual visual capacity

required of locomotive enginemen, to see in a clear

atmosphere, a dark object as large as a man of average

size standing erect at a distance of at least 800 feet

ahead and in front of such headlight; and such head-

light must be maintained in good condition.

(b) Each locomotive used in road service, which

is regularly required to run backward for any portion

of its trip, except to pick up a detached portion of its

train, or in making terminal movements, shall have

on its rear a headlight which shall meet the foregoing

requirements.

PENTA SSE RIOR NTS PN CH TAPS ; aah Be ARICA ON oid Hen he RA etary tie, S

RT Asie ’ UME LENIN ERGY SEEN USI RE ey %

44 '

whereby the light from same may be diminished in

yards and at stations or when meeting trains.

(d) When two or more locomotives are used in the

same train, the leading locomotive only will be re-

quired to display a headlight. (Code of Federal Regu-

lations, Title 49, Parts 1-91, Sec. 91.129)

Rule 131. Locomotives used in yard service.—EKach

locomotive used in yard service between sunset and

sunrise shall have two lights, one located on the front

of the locomotives and one on the rear, each of which

shall enable a person in the cab of the locomotive

under the condtions, including visual capacity, set

forth in rule 129, to see a dark object such as there

described for a distance of at least 300 feet ahead

and in front of such headlight; and such headlights

must be maintained in good condition. (Code of Fed-

eral Regulations, Title 49, Parts 1-91, Sec. 91.131)

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JUL} 2 1950

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IN THE

Supreme Court of the United States

Ocroser TERM, 1950.

No. 125

WILLIAM EDWARD WOODS,

Petitioner,

vs.

THE NEW YORK, CHICAGO & ST. LOUIS RAILROAD

COMPANY,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI.

Haroip A. Smits,

Gerorce B. CHRISTENSEN,

:iDwarp J. WENpDROw,

Counsel for Respondent,

38 South Dearborn Street,

Chicago 3, Illinois.

Winston, Strawn, Suaw & Biack,

Of Counsel.

THE GUNTHORP. WARREN PRINTING COMPANY, 210 WEST JACKSON, OMICASO

= RE Ey —_ meee a . .

PASTS BRR R IGN E LEON IN I RE OSS ATEN TE SSE PEE

¢ 4 ies ELON? FA i

INDEX.

Suspsect INDEx.

IO. ins hin is tes oe RE OE ee

TD ge Se rr eee ET err eee

nes TVRs ease ae be nce an cok Gel

TE ee ee re ee are rare

API ee Pe eee eT ee Pe Te

SuMMARY OF ARGUMENT.

The judgment of the Appellate Court of Illinois is not

final and therefore this Honorable Court lacks juris-

NN 10 TRIE BE ec en ccs hue dan ven Give 9

The judgment of the highest court of a state in

which a decision could be had reversing and

remanding a case for a new trial, is nct a final

decision and cannot be reviewed by this Court . 10

Even if it be assumed that the Appellate Court’s

opinion was a final ruling by a final Illinois

court (which it is not) as to petitioner’s right

to recover under the Boiler Inspection Act, its

judgment is not final because the cause was re-

manded for a new trial for assessment of dam-

ages, at all events under the Federal Employers’

Liability Act, and petitioner may yet make out

a case under the Safety Appliance Act ........ 13

Petitioner’s jurisdictional authorities distinguished 16

Petitioner’s jurisdictional authorities, instead of

demonstrating that this Court has jurisdiction

conclusively demonstrate that it has not ...... 16

Petitioner’s efforts to avoid a new trial are all con-

trary to established rules of law, have imposed un-

necessary burdens on this Court and the Supreme

Court of Illinois, and have created unnecessary delay 18

It is well established the Supreme Court of Illinois

did not have jurisdiction to review the judgment

of the Appellate Court of Illinois by the various

methods of review attempted by petitioner ....

TABLE oF CasEs.

-Abrams v. Awotin, 388 Ill. 26...................000. 21

Arnold v. United States, 263 U.S. 427, 434............ 16

A. T. &S. F. Railway Co. v. Scarlett, 300 U. S. 471.... 6

MODINE W. We may ee Whe Os BP oss kh oe his cweeccs 10

Bagdonas v. Liberty Land and Investment Co., 309 III.

Pe Sinan bas peek RODE Oils Big WER UEs isk dadecws 20, 21

Belskis v. Dering Coal Co., 246 Ill. 62, 66............ 4

Bostwick v. Brinkerhoff, 106 U. S. 3................. 10

Brown v. Union Bank of Florida, 4 How. 465......... 10

Brown v. Western Railway of Alabama, 338 U.S. 294.. 16

Chase Securities Corporation v. Donaldson, 325 U. S.

Sn, BE Se HE A A 13

Cincinnati Street Railway Co. v. Snell, 179 U. S. 395,

OF SCs Waukee ERB ee Lia hire hacen ek Coe ce ink 10

Corcoran v. City of Chicago, 373 Ill. 567............. 20

Cowen v. Beneficial Industrial Loan Corporation, 337

Wh, OS FE, URI GE a 16

Cowen v. Harding Hotel Co., 396 Ill. 477, 479......... 19

Davie v. Cromot, O60 Ui. Bi: Gt6 oi ocncks cxceaas scvecns 10

Dinoffria v. Brotherhood of Teamsters, 399 Il. 304.... 21

Dinsmoor v. Rowse, 211 Ill. 317, 319................ 4

Dowdall v. Hutchens, 347 Ill. 326, 327.............. 18, 19

Ex Parte Republic of Peru, 318 U.S. 578 ............ 16

Goodrich v. Sprague, 376 Ill. 80..................... 20

Gospel Army v. City of Los Angeles, 331 U. 8. 513, 543,

ae SELEUCIA ES ES aR re te gee ER 10, 11

Gray v, Somes, 176 FO. 108, 178. in ns oo cc reine 12

Hallberg v. Goldblatt Bros., 363 Ill. 25.............. 21

SPA IIR Ya pos Ger eRe eta, — — - og

a ~ a eae et a ta ei AES y: y 2 aah te ~

iii

Haseltine v. Central Bank of Springfield, 183 U. S. 130,

: SS 5 ike bk pp ake xs Ma his wah whee win ds vie 10, 13

House v. Mayo, 324 U. &. 42............2ccecees cece. 16

| Houston v. Moore, 3 Wheat. 433..................5. 10

| Johnson v. Keith, 117 U.S. 199...........0000e0eee 10

Louisiana Navigation Co. v. Oyster Commission, 226

tanta ia ADEM Ags hen wemegs ca 14

: Market Street R. Co. v. R. R. Commission, 324 U. S.

ee eh aie ue sinha ack id BA dO iy anne, M3 0s 13

: McComb v. Commissioners, 91 U. S.1................ 10

Merich v. Forschner Contracting Co., 312 Ill. 343...... 20

_ Moore v. Robbins, 18 Wall. 588..................255 10

Myers v. Reading Co., 331 U.S. 477. .............50.. 5

Newberry Library v. Board of Education, 387 Ill. 85 20

Parcels v. Johnson, 20 Wall. 653 ................ 0... 10

People v. Green, 355 Ill. 468 ........ 2... eee eee eee eee 19

| People v. Lewe, 383 Til. 549 ..... 2.2... scene 19

Price v. Johnston, 334 U. S. 266 ..................6..- 16

Radio Station WOW, Ine. v. Johnson, 326 U.S.120.. 17

Randall v. Board of Commissioners, 261 U. 8. 252 .... 22

Read v. Boyle, 234 Til. 105 ... 2.2.2... cence ee enue 18

Republic Natural Gas Co. v. Oklahoma, 334 U. 8S. 62,

DF Se ecc dvds cies Wee ee ew C0 se Pewee la ets 9, 14

Rescue Army v. Municipal Court, 331 U.S. 549 ...... 17

Rice v. Sanger, 144 U. S. 197 ......... 2. ee eee ee eee 10

Rigdon v. More, 242 Ill. 256, 259 .............---055- 4

Riley v. Lamson, 253 Ill. 258 ...........--- eee eee 18

Roche v. Evaporated Milk Association, 319 U. 8. 21... 16

Roddy v. Armitage-Hamlin Corporation, Ine., 401 Ill.

BAER RA ae ne hee entre ceed 20

tie PIPES E AOE ORT INET Mt BES ERE SAT ES ARTES: ads

Se Or ee na

St. Clair County v. Lovingston, 18 Wall. 628 ........ 10

Scott v. Freeport Motor Casualty Co., 379 Ill. 155 ... 20

Sixby v. Chicago City Railways Co., 260 Ill. 478 ..... 20

Streeter v. Humrichouse, 357 Ill. 214, 234, 238 ..... 12, 18

Tracy v. Holcombe, 24 How. 426 ................0005 10

United States v. Corsi, 287 U.S. 129 ................ 16

United States Alkali Export Association v. United

RON OEP Wye MOE oi oes ods 58 dae DeLee 16

Unie v. Thompson, 837 0. 8. 163 ...........06.00005. 15

Winn v. Jackson, 12 Wheat. 135 .................... 10

Western Union Telegraph Co. v. Hughes, 261 U.S. 252 22

Zoung v. Bg, S57 U5. S86 oo chek

CONSTITUTIONAL CITATION.

mite Vi, Ol, BE Ceaet,; 190 3 ee

vee, OE LE LE OSE CRO Pe LO EO aR

Boiler Inspection Act, 45 U.S. C. §23 ..............

Safety Appliance Act, 45 U.S.C. $11 ..............

IN THE

Supreme Court of the United States

Ocroser TERM, 1950.

No. 125.

WILLIAM EDWARD WOODS,

Petitioner,

vs.

THE NEW YORK, CHICAGO & ST. LOUIS RAILROAD

COMPANY,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI.

JURISDICTION.

This Honorable Court lacks jurisdiction to issue cer-

tiorari because the judgment of reversal and remandment

for a new trial by the Appellate Court of Illinois is not

a ‘‘final judgment or decree’’ within the meaning of the

Judicial Code (28 U. S. C. § 1257). A petition to the

Supreme Court of Illinois for leave to appeal from the

judgment was dismissed by that court because of a similar

want of jurisdiction; a writ of error proceeding instituted

in that Court was likewise dismissed.

EERE PRA REN OTSA AS LILY CRIS EE

Il.

QUESTIONS PRESENTED.

1. Is the judgment of the Appellate Court of Illinois

reversing and remanding for a new trial, attempted re-

views of which by petition for leave to appeal and writ of

error were dismissed by the Supreme Court of Illinois

because of lack of jurisdiction, a ‘‘final judgment’ ren-

dered by the highest Court of a State in which a decision

could be had within the meaning of 28 U.S. C. § 1257?

2. Assuming this Court has jurisdiction to review the

judgment of the Appellate Court of Illinois, did that Court

properly hold that there was no evidence tending to prove

petitioner’s contention that respondent had violated the

Boiler Inspection and Safety Appliance Acts, and that

instructions which permitted the jury to find a violation

of such acts should not have been given?

ITI.

STATUTES INVOLVED.

Title 28, Section 1257 of the United States Code,

Federal Employers’ Liability Act (45 U. S. C,

§ 51 et seq.).

Boiler Inspection Act (45 U. S. C. § 23).

Safety Appliance Act (45 U, S. C. § 11).

IV.

STATEMENT OF THE CASE.

Petitioner seeks review of the following interlocutory

judgment of the Appellate Court of Illinois:

‘‘Therefore, it is considered by the Court that for

that error, and others in the record and proceedings

aforesaid, the judgment of the Superior Court of Cook

County in this behalf rendered, be reversed, annulled,

set aside, and wholly for nothing esteemed, and that

this cause be remanded to the Superior Court of Cook

County for such other and further proceedings as to

law and justice shall appertain in conformity with the

opinion of this Court this day filed herein.’’ (R, 318,

319.)!

Petitioner has hitherto sought to have the interlocutory

judgment at bar reviewed by the Supreme Court of Illinois

by petitioning to Appellate Court for an appeal which it

denied (R, 319), by petitioning the Supreme Court for an

appeal (R. 1-37) which petition was dismissed (R, 857) and

by suing out a writ of error from the Supreme Court to

the Appellate Court (R. 301) which was dismissed on re-

spondent’s motion (Writ of error record, pp, 319, 310),

(Petitioner also attempted what we have termed an ‘‘in-

direct review’’ by seeking an original writ of mandamus

from the Supreme Court of Illinois to the Appellate Court,

The refusal of the Supreme Court of Ilinoia to entertain

such action is the subject of Case No, 788, October Term

1949, in this Court.)

Although page 2 of the petition for certiorari refers to

the judgment as one ‘rever ning the judgment’? of the trial

eee ae

1, Reeoord references, unless otherwise indicated, are to the

brown covered printed record,

MPI 0

RET

court, nevertheless petitioner concedes (p. 8) that the

judgment, as construed by the Illinois cases, is not one of

outright reversal but of reversal and remand for a new

trial. Where the parties are entitled to a jury trial and

the judgment is reversed by a reviewing Court for errors

intervening prior to entry of judgment and the cause is

remanded generally, the parties are entitled, under Illinois

law, to a trial de novo. Rigdon v. More, 242 Tll. 256, 259;

Belskis v. Dering Coal Co., 246 Ill. 62, 66. ‘‘The cause then

stands in the Court below precisely as if no trial had oc-

curred.’’ Dinsmoor v. Rowse, 211 Ill. 317, 319.

This judgment of reversal and remandment for a new

trial by the Appellate Court of Illinois was entered on

an appeal by respondent from a judgment of the Superior

Court of Cook County entered on the verdict of a jury in

an action to recover for personal injuries under the Fed-

eral Employers’ Liability Act (45 U. S. C. §§ 51-59), the

Federal Safety Appliance Act (45 U. S. C. § 11) and the

Federal Boiler Inspection Act (45 U. 8S. C. § 23).

Respondent on appeal, while admitting liability under

the Federal Employers’ Liability Act, assigned a number

of errors for reversal and new trial, the principal ones

being that the court (1) ‘erred in giving instructions per-

mitting recovery under the Safety Appliance and Boiler

Inspection Acts because there is no evidence of a violation

of either,’? and, (2) ‘that the damages awarded are ex-

coasive’’ (R, 89),

The Appellate Court found it necessary to pass only on

the contentions with respect to the instructions, Tt held

with respect to the Safety Appliance Act:

1, That petitioner's testimony that about two hours

before the accident on a dark night (R, 94; Pet, p. 4) he

saw the coal car involved on a spur track about ten feet

in from the switch and a brakeman ‘‘setting the brakes’?

ANE Yee Pr SORT E ONA FRR EPR mae RRR WE

(R. 71), coupled with the fact that subsequently at the time

of the accident the coal car fouled the main track, did not

constitute evidence tending to prove an inefficient brake on

the coal car. Citing this Court’s decision in Myers v. Read-

ing Co., 331 U. 8, 477, the Appellate Court pointed out that

there were two recognized methods of showing the ineffi-

ciency of handbrake equipment, namely, evidence of some

particular defect or evidence of failure to function ‘‘when

operated with due care, in a normal, natural and usual

manner.’’ It pointed out that petitioner made no claim

under the first method and that the evidence ‘‘fails utterly

to meet the requirements of the second.’’? To meet the re-

quirements of the second petitioner had to show that the

‘‘brake was actually set with due care and in a normal,

natural and usual manner’’ and that ‘‘the slope of the

spur track was such as to cause a spotted car to move or

drift toward the main track unless an efficient brake was

properly set.’’ Petitioner did neither. Testimony by peti-

tioner that he saw a brakeman ‘‘setting the brakes’? was

proof only of an ‘‘incomplete operation’? The only evi-

dence as to the slope of the spur track was the testimony

of three members of petitioner’s crew that the spur track

sloped ‘‘away from the main track’’ and therefore ‘drift

of the coal ear toward the main track was impossible’’

(R. 89, 40), Therefore, there was no evidence tending to

prove a violation of the Safety Appliance Act,

Petitioner asserts at least seven times in his present

petition that respondent admitted liability at the trial

under the Safety Appliance Act (pp, 8, 7, 8, 19, 20 and 21),

This ia not so, Repeated reiteration of this misatatement

while aggravating does not make it true, Respondent

vigorously contested any liability under the Safety Appli-

ance Act at the trial (See also arguments on motion for

new trial in the Trial Court, R, 265-272; 289.301.)

One of the bases of the Appellate Court's holding that

_ Te hE oon, Pit. tot iia it

there was no evidence tending to prove a violation of the

Safety Appliance Act was the uncontradicted testimony

of three witnesses for respondent that the spur track

sloped away from the main track. Counsel refer to an

opening statement made by counsel for respondent two and

a half days before respondent had begun to put on its

case and had an opportunity to interview respondent’s

out-of-state witnesses to the effect that counsel did not

know whether the coal car fouled the main because it had

been put there or whether it had drifted there (R. 56). As

the Appellate Court remarked in its opinion, ‘‘ ‘I do not

know’ is not an admission of facts as to which counsel de-

clares his lack of knowledge’’ (R. 40).

With respect to petitioner’s claim that there was a vio-

lation of the Boiler Inspection Act, the Appellate Court

held:

2. That petitioner’s uncorroborated testimony that a

non-focusing, back-up light was ‘‘out of focus’’ and was

piercing the sky at ‘‘about a forty-five degree angle’’ (R.

93) (contradicted by other members of the crew) did not

tend to prove a violation of the Boiler Inspection Act be-

cause, under appropriate rules of the Interstate Commerce

Commission, no rear light was required at the time of the

movement in question (Title 49, Code of Federal Regula-

tions, § 91.129). Citing this Court’s decision in A. T. &

S. F. Railway Co. v. Scarlett, 300 U. S. 471, and certain

State Court decisions, it held that ‘‘strict compliance with

the rules and specifications of the commission is fulfillment

of the carrier’s duty’’ (R. 41); that since under the rules

of the Interstate Commerce Commission respondent was

‘‘ynder no obligation under the Boiler Inspection Act to

provide a light on the rear of the tender, it is not iiable

under that act if a light installed, but not required by

the Act, was not properly focused’’ (R. 42). In other

words, the Court, considering the only purpose of a light,

PEER IRE MLN OARS RHO Gane aKt —

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held in effect that the light, even if allegedly defective, was

better than no light at all, and if there had been no light

at all the jury could not have found a violation of the

Boiler Inspection Act. Therefore, there was no evidence

tending to prove a violation of the Boiler Inspection Act.

The Appellate Court further held that the errors in

giving the instructions in question required a reversal and

remandment for a new trial. It pointed out that under the

two Safety Acts the defense of contributory negligence

cannot be asserted either as a defense or in mitigation of

damages, but it must be considered in reduction of dam-

ages under the Federal Employers’ Liability Act; that

‘‘the damages awarded ($40,000) are large and it may be

that the jury, relying on the instructions relating to the

Safety Appliance and Boiler Inspection Acts, failed to

consider the question of contributory negligence in mak-

ing the award’’ (R. 42).

In conformity with its views the Appellate Court entered

the judgment above quoted. Then came the persistent ef-

forts of plaintiff somehow, some way to avoid a new trial

by securing review of a non-reviewable, non-final order.

The present petition is but another step in what, in our

experience, is an unprecedented campaign to obtain fur-

ther review of any interlocutory judgment. The petition

and brief make such consistently unwarranted claims that

a lengthy answer seems necessary.

Petitioner, after denial of a petition for rehearing (R.

319), and the denial of an appeal by the Appellate Court

(R. 319), petitioned the Supreme Court of Illinois for

leave to appeal. Respondent moved the Supreme Court

of Illinois to dismiss the petition because the judgment of

the Appellate Court was not final, and therefore the Su-

preme Court had no jurisdiction (R. 350-355). The Su-

preme Court dismissed the petition (R. 357). Concur-

Bieri SEERA REIT Rio er EH Honea

ON te RE

rently petitioner sued out a writ of error from the Su-

preme Court to the Appellate Court (writ of error record,

p. 301).. Respondent, as defendant in error, moved to dis-

miss the writ because the Supreme Court lacked jurisdic-

tion to review the judgment of the Appellate Court by writ

of error (writ of error record, p. 310), which motion the

Supreme Court granted (Writ of Error record, p. 319).

The mandamus effort is set forth in Case No. 738, Octo-

ber Term, 1949.

We submit that the judgment of the Appellate Court is

correct for the reasons stated in the opinion, but nothing

would be served by a brief addressed to the merits of the

ease, or undertaking to correct petitioner’s erroneous

factual statements, because the judgment of the Appel-

late Court is not final and is not reviewable by this Honor-

able Court. Accordingly, in our argument, we address

ourselves to the jurisdictional question.

IV.

ARGUMENT.

The Judgment of the Appellate Court of Illinois Is Not

Final and Therefore This Honorable Court Lacks Juris-

diction to Review It. :

Under 28 U. S. C. § 1257 (3) this Court has jurisdiction

to review by certiorari only ‘‘final judgments or decrees

rendered by the highest Court of a State in which a de-

cision could be had, * * *.’’ Although petitioner claims in

the petition that this Court has jurisdiction to review under

28 U. S. C. § 1651 (a) even though the judgment of the

Appellate Court is not final’ (Pet., p. 35), and that this

Court has ‘‘swept into discard’’ ‘‘outmoded legalistic con-

cepts of * * * finality of judgments’’ (p. 31), such claims

are directly contrary to repeated holdings by this Court.

This Court in Republic Natural Gas Co. v. Oklahoma, 334

U. S. 62, 64, in referring to former § 237 of the Judicial

Code (now 28 U. S. C. § 1257) recently said that in order

to ‘‘avoid the evils of piecemeal review,’’ ‘‘Ever since

1789, Congress has granted this Court the power of review

in State litigation only after the highest Court of a State

in which a decision in a suit could be had has rendered

a final judgment or decree.”’

As this Court also observed in that case, ‘‘no self-en-

forcing formula defining when a judgment is ‘final’ can be

devised’’ and various general tests have been laid down.

3. The power conferred by 28 U. S. C. § 1651, to issue writs,

is of course, only a power to issue writs in aid of a jurisdiction

otherwise existing. It is not any source of jurisdiction to review

State Court judgments.

a SS

os “f

One of these which is ‘‘well settled and of long standing’’

is that ‘‘a judgment or decree to be final, * * * must ter-

minate the litigation between the parties on the merits of

the case, so that if there should be an affirmance here, the

Court below would have nothing to do but to execute the

judgment or decree it had already rendered.’’ Bostwick v.

Brinkerhoff, 106 U. S. 3. Of course, this could never be

so where the judgment of the State Court sought to be re-

viewed is one of reversal and remandment for a trial de

novo as in the case at bar. There is no question better

settled by the decisions of this Court than that a judgment

of the highest Court of a State in which a decision could

be had reversing and remanding the case for further pro-

ceedings at law, as for a new trial, or in equity, is not a

final decision and cannot be reviewed by this Court. Gospel

Army v. City of Los Angeles, 331 U. S. 543; Johnson v.

Keith, 117 U. S. 199; St. Clair County v. Lovingston, 18

Wall. 628; Parcels v. Johnson, 20 Wall. 653; Bostwick v.

Brinkerhoff, 106 U. S. 3; Brown v. Union Bank of Florida,

4 How. 465; Tracy v. Holcombe, 24 How. 426; McComb v.

Commissioners, 91 U. 8S. 1; Baker v. White, 92 U. S. 176;

Davis v. Crouch, 94 U. S. 514; Rice v. Sanger, 144 U. S.

197; Haseltine v. Central Bank of Springfield, 183 U. S.

130; Houston v. Moore, 3 Wheat. 433; Winn v. Jackson,

12 Wheat. 135; Moore v. Robbins, 18 Wall. 588.

As said by this Court in Cincinnati Street Railway Co.

v. Snell, 179 U. S. 395, 397:

‘“We have held in too many eases even to justify

citation, that a judgment reversing a cause and re-

manding it for a new trial, or for further proceedings

of a judicial character, is totally wanting in the req-

uisite finality required to support a writ of error from

this court.’’

In Gospel Army v. City of Los Angeles, 331 U. 8S. 543,

546, this Court recently said:

‘*Under § 237 of the Judicial Code, 28 U.S. C. § 344,

[now 28 U. 8. C. § 1257] only ‘final judgments’ of

state courts may be appealed to this Court. And it

frequently has been said that for a judgment of an

appellate court to be final and reviewable for this pur-

pose it must end the litigation by fully determining

the rights of the parties, so that nothing remains to

be done by the trial court ‘except the ministerial act

of entering the judgment which the appellate court

* * * directed.’ Department of Banking v. Pink, 317

U. S. 264, 267. Thus, where the effect of the state

court’s direction is to grant a new trial, the judgment

will not be final.’’ (Italies added.)

The foregoing authorities are squarely in point and re-

quire a denial of the petition.

Petitioner’s contention that this Court has jurisdiction

is based on the following assertions:

On the retrial petitioner will be unable to recover under

the Boiler Inspection Act because the nature of the Appel-

late Court’s ruling is such that it does not appear possible

that he can introduce any additional evidence that can

avoid the Appellate Court’s ruling (Pet., p. 7). Therefore,

it is asserted he is ‘‘forever barred from any relief under

the Federal Boiler Inspection Act, as far as the Courts

of Illinois are concerned, * * *’’* (Pet., p. 31).

4. Actually, petitioner’s claimed right to recover under the

Boiler Inspection Act is not ‘‘forever barred’’ by the Illinois

Courts even if it be assumed that petitioner cannot possibly over-

come the Appellate Court’s ruling by the introduction of addi-

tional evidence on a retrial and that the Appellate Court on an

appeal by him would continue to adhere to its ruling under the

“‘law of the case’’ rule.

If the trial court on a retrial, and on the same evidence, in

conformity with the Appellate Court’s mandate refused to give

instructions permitting recovery under the Boiler Inspection Act,

petitioner would have a right of appeal even from a judgment

in his favor to the Appellate Court. Under Illinois law a party

in whose favor a judgment is rendered may appeal and ‘‘obtain

a reversal for an error prejudicial to him. * * * If he is able to

assign any error or has not obtained all that he deems himself

entitled to, he may appeal, under the statute, and where a trial is

EON IT

No pretense is made that this is so under the Appellate

Court’s holding with respect to the claimed violation of

the Safety Appliance Act, although counsel repeatedly

make the erroneous statement that respondent admitted lia-

bility under this Act at the time of the trial. After having

asserted that petitioner is ‘‘forever foreclosed’’ (p. 7)

under the Boiler Inspection Act, it is then asserted that the

judgment of the Appellate Court is reviewable:

‘‘Under the familiar principles which this Court has

always applied where jurisdictional basis exists as to

any one branch of a case, it can decide all other federal

questions presented by the record, including the ques-

tion whether the evidence and proceedings at the trial

warranted the instruction to the jury that petitioner

was entitled to full damages, if the jury found that a

violation of the hand-brake provision of the Federal

Safety Appliance Act contributed to his injuries.’’

(Pet., p. 9.)

In other words, so petitioner asserts, since the Appellate

Court has made an asserted final decision as to one branch

of his case, therefore this Court has jurisdiction to review

the judgment reversing the whole case for a new trial. No

authorities are cited in support of these so-called ‘‘familiar

principles’’ and they are non-existent.

Petitioner had, and has, only one cause of action for his

injuries even though he claimed respondent was liable under

the absolute liability imposed by the two Safety Statutes,

and for negligence under the Federal Employers’ Liability

Act. ‘‘It is not uncommon that a single cause of action in

tort will rest both on omission of a statutory duty and on

de novo he may appeal to secure a larger judgment or more com-

plete relief.’”’ Gray v. Jones, 178 Ill. 169, 172. If the Appellate

Court adhered to its views under the ‘‘law of the case’’ rule,

petitioner could then petition for leave to appeal to the Supreme

Court. The Appellate Court’s non-reviewable decision on the

first appeal would not be binding on the Supreme Court of Illi-

nois. Streeter v. Humrichouse, 357 Ill. 234.

SS OR ere nomena geil

common law negligence; the two bases do not necessarily

multiply the causes of action.’’ Chase Securities Corpo-

ration v. Donaldson, 325 U. S. 304, 311.

Whether petitioner can introduce additional evidence on

a retrial which will obviate the Appellate Court’s ruling

on the Boiler Inspection Act cannot be said with certainty;

but if it be that he cannot and even if he was suing solely

under that Act, the present judgment would not be final.

As said by this Court in Haseltine v. Central Bank of

Springfield, 183 U. S. 130, 131, for the reasons stated in

the opinion, ‘‘We have, therefore, always * * * refused

to inquire whether, in case of a new trial, the defeated party

would stand in a position to make a better case.”’

However, the fact is that petitioner seeks to recover

under three Acts, and no pretense is made that the Appel-

late Court’s ruling is such on the claimed Safety Appliance

Act violation, that there is no possibility that on a retrial

he may not be able to introduce additional evidence which

would overcome the Appellate Court’s holding. Conceiv-

ably, he may introduce additional evidence that the brake

actually was set ‘‘with due care, in the normal, natural,

and usual manner’’ by the claimed brakeman, and that,

contrary to what respondent’s witnesses testified, the slope

of the spur track was towards the main. (Petitioner gave

no testimony as to slope, one way or the other on the trial.)

Therefore, even if it be assumed arguendo that the Appel-

late Court’s opinion is a final ruling by a final Illinois

court® (which it is not) as to one branch of the case, its

judgment is not final because the cause is remanded for new

trial for assessment of damages, at all events under the

Liability Act, and petitioner may yet make oui a case under

the Safety Appliance Act.

5. The State Court judgment must be final ‘‘in two senses.

* * * It must be the final word of a final Court.’’ Market Street

R. Co. v. R. R. Commission, 324 U. 8. 548, 551.

Squarely contrary to the assertion made at page 9 of the

petition above quoted, is this Court's decision in Loutsiana

Navigation Co. v. Oyster Commission, 226 U. S. 99, where

it held that even if the State Court judgment does finally dis-

pose of some elements of the controversy, unless it is final

as to the entire controversy this Court can not review it.

The action was one to recover damages for slander of title

to described lands, and the trial court dismissed the plain-

tiff’s petition because it stated no cause of action. The

Louisiana Supreme Court, reviewing the averments, ex-

pressed the opinion that a cause of action was stated, ¢. e.,

that there was an allegation of title to some of the land, but

that there was no title alleged as to other parts. It re-

manded the cause for further proceedings in accordance

with its opinion. The petitioner then sued out a writ of

error upon the theory that federal questions were involved

and contended that the judgment of the Louisiana Supreme

Court was final because the opinion of that Court finally

disposed of a substantial part of the lands involved and

hence in remanding for further proceedings did so only as

to the other lands. But this Court stated at page 101 that

‘‘eonceding this to be true, it does not justify the claim

based on it,’’ because, ‘‘* * * it is settled that this Court

may not be called upon to review by piecemeal the action of

a State Court which otherwise would be within its juris-

WO ocr

In Republic Natural Gas Co. v. Oklahoma, 334 U. S. 62,

68, this Court, citing three earlier decisions, said:

‘“‘Thus, the requirement of finality has not been met

merely because the major issues in a case have been

decided and only a few loose ends remain to be tied

up—for example, where liability has been determined

and all that needs to be adjudicated is the amount of

damages.’’

And in the same case, in dismissing an appeal from the

HOE IE Te AERO GGA RS oan THe rarer ne

TORR Wey PREM erase Sl

Supreme Court of Oklahoma affirming a certain order of a

State regulatory commission because the judgment was

not final, quoting from Collins v. Miller, 252 U. S. 364, 371,

this Court also said:

‘*Only one branch of the case has been finally dis-

posed of below, therefore none of it is ripe for review

by this Court.’’

Urie v. Thompson, 337 U. S. 163, demonstrates conclu-

sively (a) that the present judgment of the Appellate Court

is non-final and non-reviewable by this Court, but (b) that

petitioner’s asserted rights, if any, under the Boiler In-

spection Act are not ‘‘forever barred’’ but may be re-

viewed under the judgment that will eventuate from the

new trial. In that case the plaintiff filed a complaint

(petition) under the Federal Employers’ Liability Act.

The Trial Court sustained a demurrer. The Missouri Su-

preme Court held that the complaint did not state a cause

of action under the Federal Employers’ Liability Act but

did state one under the Boiler Inspection Act and reversed

and remanded the cause for trial (853 Mo. 211, 176 S. W.

2d 471). A trial resulted in a verdict and judgment for the

plaintiff under the Boiler Inspection Act. On a second

appeal the Missouri Supreme Court reversed outright on

the ground that the Boiler Inspection Act did not cover silli-

cosis, the injuries for which plaintiff was suing (357 Mo.

738, 210 S. W. 2d 298). This Court on a review of this

second judgment which was final, pointed out that the first

ruling that the complaint did not state a cause of action

under the Federal Employers’ Liability Act was not final

and was not reviewable by this Court at the time it was

entered because the cause was remanded for trial but was

reviewable on the review of the subsequent final judgment.

This Court then went on to held that the complaint did in

fact state a cause of action under the Federal Employers’

Liability Act as well as the Boiler Act.

iL cnt

SCENT Seca

In Arnold v. United States, 263 U.S. 427, 434, this Court

said:

‘Tt is well settled * * * that to be reviewable

a judgment or decree must be * * * final not only

as to all the parties, but as to the whole subject-

matter and as to all the causes of action involved

Petitioner’s Jurisdictional Authorities Distinguished.

At page 17 petitioner cites fourteen cases which he con-

tends sustain the jurisdiction of this Court. Such of the

cases as are in point, instead of demonstrating that this

Court has jurisdiction, conclusively demonstrate that it

has not.

Seven of the cases cited*® have to do with this Court’s

power to review orders of inferior federal courts. Since

this Court has not only power to review interlocutory as

well as final orders of lower federal courts, the cases are

wholly irrelevant.

Of the seven cases involving review of state court judg-

ments, this Court dismissed for lack of finality of the judg-

ment in two and assumed jurisdiction in five. The five in

which the Court assumed jurisdiction are plainly distin-

guishable.

Brown v. Western Railway of Alabama, 338 U. S. 294,

was an action under the Federal Employers’ Liability Act,

where the Trial Court sustained a general demurrer to a

complaint and dismissed the action, which order the State

Court of Appeals affirmed. Since the dismissal barred re-

6. United States Alkali Export Association v. United States,

325 U. S. 196; House v. Mayo, 324 U. 8. 42; Ex Parte Republic

of Peru, 318 U. 8. 578; Price v. Johnston, 334 U. 8. 266; Roche v.

Evaporated Milk Association, 319 U. 8. 21; United States v. Corsi,

287 U. S. 129; Cowen v. Beneficial Industrial Loan Corporation,

337 U. 8. 541.

PELTON GE ELLEN! BES LO SELERT REIT BRIE S TEIN he PD gm DPA SNC ayer MO IS I alts MARES 18 ep yes sg

_— SP ee en re ee we PERG

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covery in any future proceeding, it was plainly a final

judgment.

In Rescue Army v. Municipal Court, 331 U. 8. 549, this

Court held that a judgment of the highest state court deny-

ing a writ of prohibition against pending prosecutions for

violation of municipal ordinances on grounds such ordi-

nances were unconstitutional possessed finality to sustain

an appeal to this Court. That it is utterly inapplicable is

demonstrated by a mere recitation of this Court’s holding.

In Young v. Ragen, 337 U. S. 235, this Court issued cer-

tiorari to various Illinois nist prius courts (these courts

under Illinois law were the highest courts in which a deci-

sion could be had) to review final orders denying petitions

for habeas corpus.

In Radio Station WOW, Inc. v. Johnson, 326 U. S. 120,

this Court held that a state court’s judgment directing

immediate delivery to the transferor of property, the

transfer of which was held to have been procured by fraud,

was a final judgment, which, by reason of the presence of

federal questions, was reviewable by this Court, even though

it also directed an accounting of profits from such property,

when the accounting ordered could not raise other federal

questions.

Urie v. Thompson, 327 U. S. 163, as we have shown at

page 15, is a decision squarely in support of our client’s

position rather than petitioners.

The only cases really in point on the issue involved are

the two where this Court dismissed for lack of finality of

the State Court judgment. Renublic Natural Gas Co. v.

Oklahoma, 334 U. S. 62 and Gospel Army v. Los Angeles,

331 U.S. 513, quoted from, supra, p. 10.

SRE ae PA ROA EPO Se. eSNG Heremse ee

Petitioner’s Efforts to Avoid a New Trial Are All Con-

trary to Clearly Established Rules of Law, Have Im-

posed Unnecessary Burdens on This Court and the Su-

preme Court of Illinois, and Have Created Unnecessary

Delay.

Counsel complain of delay (p. 36), but the real cause of

delay before petitioner obtains any recovery is counsel’s

obstinate refusal to recognize that settled principles of law

in each insfance have been against their manifold attempts

sornehow te obtain a review of the Appellate Court judg-

ment. A new trial might well have been had already but

for the course pursued by petitioner’s counsel.

Nothing is better settled under the law of Illinois than

that the judgment entered by the Appellate Court is not a

final judgment and was no more reviewable by the Illinois

Supreme Court than by this Court. See, Streeter v.

Humrichouse, 357 Ill. 234, 238 and Riley v. Lamson, 253 Il.

258.7 But in the teeth of these authorities, the first thing

counsel did after the petition for rehearing was denied was

to petition the Appellate Court of Illinois for leave to

appeal to the Supreme Court and for a certificate of im-

portance (R. 342-344). That move was completely without

merit and was foredoomed to failure because it is settled

law in Illinois that where the Appellate Court judgment is

not final, ‘‘the Appellate Court in such case has no power

to allow an appeal and grant a Certificate of Importance.’’

Dowdall v. Hutchens, 347 Ill. 326, 327; Read v. Boyle, 234

Ill. 105. The Appellate Court accordingly denied this peti-

tion on December 12, 1949 (R. 319).

7. Additional authorities bearing on this point will be found

in respondent’s answer to petitioner’s petition for leave to appeal

to the Supreme Court of Illinois which appears at pages 350-355

of the record.

LONI, SBI RAEN RE LS I

Next, counsel sought to evade the non-appealable char-

acter of the Appellate Court judgment by moving for leave

to file an original mandamus action in the Supreme Court

of Illinois to compel the Judges of the Appellate Court of

Illinois to expunge their judgment and affirm the Trial

Court judgment in his favor. Leave to file was denied by

the Supreme Court of Illinois on January 10, 1950. A mo-

tion for reconsideration was denied on January 18, 1950.

Counsel thereupon sought review by this Court of the fore-

going action by the Supreme Court of Illinois (Cause No.

738, October Term, 1949; renumbered as Cause No. 43,

October Term, 1950). This mandamus method of attempt-

ing to secure indirect review was filed squarely against

settled Illinois law that original mandamus does not lie to

correct allegedly erroneous judgments of inferior tribunals.

See, e. g., People v. Green, 355 Ill. 468; People v. Lewe, 383

Ill. 549. The petition for certiorari to review the Supreme

Court’s order was filed in the teeth of settled law that this

Court cannot review State Court judgments sustainable on

adequate and independent non-federal grounds.®

Next, counsel filed a petition for leave to appeal in the

Supreme Court of Illinois. This petition was filed in the

face of settled law that a review of the judgments, orders

and decrees of the Appellate Court by the Supreme Court

can only be had where any such judgment, order or decree

of the Appellate Court is a final order. Dowdall v.

Hutchens, 347 Ill. 326, 327; Cowen v. Harding Hotel Co.,.

396 Ill. 477, 479.° This petition was ‘‘dismissed’’ (R. 357)

pursuant to respondent’s request (R. 350-355), not ‘‘denied’’

as erroneously asserted by petitioner at one point in the

8. Additional authorities on both points ean be found in the

brief in opposition to petition for writ of certiorari filed by the

respondents in cause No. 738, October Term, 1949.

9. Additional authorities on the foregoing point can be found

in respondent’s answer to petitioner’s petition for leave to appeal

filed in the Supreme Court of Illinois, which is found at pages

350-355 of the record.

BEANE LS TSMR DN SEITE MPS SILI ELIS PTT aS AEC ESOL SLA SIRS

petition (p. 9). The significance of the word ‘‘dismissed”’

rather than ‘‘denied’’ is that under 'linois law, where the

Supreme Court has no jurisdiction to grant a petition, the

order entered by the Court is one of dismissal (See au-

thorities in respondent’s answer to petition for leave to

appeal filed in the Supreme Court of Illinois, pp. 351, 352

of the record).’°

Concurrently with petitioner’s petition for leave to ap-

peal in the Supreme Court, he sued out a writ of error from

the Supreme Court of Illinois to the Appellate Court in an

effort to secure a review of the Appellate Court judgment.

This attempt was made in the teeth of settled law that the

judgment of the Appellate Court was not reviewable by

writ of error.

Under Illinois law, writ of error is a practically obsolete

method of securing review of Appellate Court orders in the

Illinois Supreme Court in civil cases and is only available

where the constitutionality of a statute has arisen for the

first time in the Appellate Court.

This jurisdiction is conferred by Art. VI, § 11 of the

Constitution of 1870 which provides that writs of error

shall lie from the Supreme Court to the Appellate Court,

inter alia, where ‘‘the validity of a statute is involved.”’

Bagdonas v. Liberty Land and Investment Co., 309 Ill. 103;

Corcoran v. City of Chicago, 373 Ill. 567; Siaby v. Chicago

10. Petitioner in this Court cites the case of Newberry Library

v. Board of Education, 387 Ill. 85, and Roddy v. Armitage-Hamlin

Corporation, Inc., 401 Ill. 605, to the effect that the Supreme

Court of Illinois had jurisdiction to grant his petition for leave to

appeal (pp. 8, 9). Whether the Supreme Court of Illinois had

jurisdiction to grant the petition for leave to appeal is, of course,

solely a question of state law and the fact that the Illinois Su-

preme Court ‘‘dismissed’’ rather than ‘‘denied’’ petitioner’s

petition is sufficient in itself to demonstrate the complete ir-

relevancy of the two cited cases. These same two cases were re-

lied on in petitioner’s petition for leave to appeal in the Supreme

Court (R. 9, 10) and are adequately distinguished in respondent’s

answer to that petition at pages 353, 354 of the record.

Pi ed i a BL ah ae aes ne Leer ee .

. PENS RATE ES PRELIM OLED NY IS SRS EMMI. seus Rese

7 < FOIA IRE PON EIS GAN ies ORR OS De at

City Railways Co., 260 Ill. 478; Merich v. Forschner Con-

tracting Co., 312 Ill. 343; Goodrich v. Sprague, 376 Ill. 80;

Scott v. Freeport Motor Casualty Co., 379 Tl. 155. Unlike

the Supreme Court’s jurisdiction under the Civil Practice

Act of Illinois which is limited to a review of final judg-

ments of the Appellate Courts, this constitutional jurisdic-

tion is exercisable to review interlocutory orders of the

Appellate Court. Bagdonas v. Liberty Land &: Investment

Co., 309 Ill. 103; Hallberg v. Goldblatt Bros., 363 Ill. 25.

Accordingly, petitioner sought to avail himself of this

very limited jurisdiction to review interlocutory orders of

the Appellate Court by suing out a writ of error to that

Court and assigning numerous errors to the effect that the

Appellate Court’s judgment had deprived him of a right to

a jury trial, denied him due process, equal protection, ete.,

contrary to the Illinois and Federal Constitutions (Writ

of Error Record, pp. 303-309). This was done in the teeth

of settled law that a contention to the effect that an errone-

ous Appellate Court judgment will deprive one of constitu-

tional guarantees does not raise a constitutional question

within the meaning of the writ of error jurisdiction of the

Supreme Court but only presents the question ‘‘merely of

the validity of the judgment.’’ See, e. g., Abrams v. Awotin,

388 Ill. 26. Accordingly, respondent filed a motion in the

Supreme Court of Illinois to dismiss the writ of error on

the grounds that the Court lacked jurisdiction to review the

Appellate Court judgment by writ of error (Writ of Error

Record, p. 210), which motion the Court granted on March

14, 1950 (Writ of Error Record, p. 319).™

11. At page 10 of the petition, petitioner, citing Dinoffria v.

Brotherhood of Teamsters, 399 Ill. 304, asserts that the Supreme

Court of Illinois had jurisdiction to review the Appellate Court

judgment by writ of error. The fact the Supreme Court ‘‘dis-

missed’’ the writ is in and of itself sufficient to demonstrate the

error of this contention. The Dinoffria case was one where the

Supreme Court dismissed a writ of error to the Appellate Court

pointing out (p. 390), ‘‘It is not enough to give this Court juris-

BRD Ren ener aan er Ere pepR RERUNS mM eN en AN OMIPSRO ES ee ENS NA ECE AA EU ha te Sp Atenesnneae ramen

Now, after the numerous and sundry State Court pro-

ceedings petitioner is filing in this Court a petition which

flies in the teeth of settled law as much as his earlier efforts.

The petition not only asks that a writ of certiorari be di-

rected to the Supreme and Appellate Courts’? but even

contends that this Court has jurisdiction to review the

three proceedings in the Illinois Supreme Court and the

judgment of the Appellate Court by writ of error (p. 17),

although this method of review of State Court judgments

was abolished in 1928 (45 Stat. 54).

The question naturally arises, therefore, why such desper-

ate efforts to secure review of the unreviewable Appellate

Court judgment?

This is not the case of an injured employee who has been

denied any recovery whatsoever by the highest court of the

state. On the contrary, respondent admits liability under

the Federal Employers’ Liability Act and petitioner is

assured of recovering something on the new trial ordered

by the Appellate Court.

Ostensibly, petitioner appears to be seeking to vindicate

a claimed right to recover under the Boiler Inspection Act.

Actually his frantie efforts to secure a review are an at-

tempt, somehow and in some way, to hold on to a $40,000

verdict which, under the medical evidence in this case, was

outrageously and grossly excessive. The Appellate Court’s

diction to contend only that one will be deprived of a constitu-

tional right because of the erroneous judgment of the lower

Court.’’ (See writ of error record, pp. 316, 317.) The Dinoffria

case was relied upon by petitioner in the Illinois Supreme Court

while making the frivolous contention that the Appellate Court

had held the Safety Acts to be ‘‘invalid’’ (writ of error record,

pp. 316, 317).

12. Since the Supreme Court dismissed the writ of error and

petition for leave to appeal for lack of jurisdiction, if the Appel-

late Court judgment were final, the writ, if issued, would be

directed to the Appellate Court and not the Supreme Court.

Western Union Telegraph Co. v. Hughes, 203 U. S. 505; Randall

v. Board of Commissioners, 261 U. 8. 252.

opinion recites that this point was raised by respondent in

its appeal to the Appellate Court but the Appellate Court

did not have to pass on it in view of its disposition of this

case on other grounds.

As petitioner admits, the principal dispute with respect

to his asserted injuries was whether certain pelvic fractures

had occurred as a result of the accident sued on or as the

result of an automobile accident in 1942. The testimony

bearing on this point cannot be discussed adequately in

brief fashion, but justice to the Appellate Court requires

some reference to it in order to dispel the impression sought

to be created that that Court rendered a highly technical

decision which deprived petitioner of a wholly meritorious

verdict.

Petitioner suffered a near fatal automobile accident in

Billings, Montana, on April 27, 1942, in which he incurred

numerous, severe and grave injuries (R. 83, 84) resulting

in complete disablement until the Spring of 1943 (R. 59).

He settled his claim against his then employer arising there-

from about May, 1943, on the basis that he was then 45%

totally and permanently disabled (R. 82).

In the instant action he claimed that as a result of the

accident in question he suffered, inter alia, certain pelvic

fractures, while respondent contended that all he suffered

was a dislocated shoulder and other minor injuries.

The accident in question occurred on November 14, 1946

and resulted in petitioner being taken to a hospital in Fort

Wayne, Indiana, where various X-rays were taken, includ-

ing some of his pelvic region. To prove his claim that he

suffered the pelvic injuries as a result of the accident sued

on rather than the prior 1942 accident, plaintiff used pro-

fessional medical witness, one Dr. Greenspahn. Dr. Green-

spahn examined petitioner in Chicago fifteen days after the

accident sued on and at that time found no evidence of

pelvic fractures. But on a second examination in January,

1947, he found X-ray evidence that plaintiff had suffered a

fracture of the pelvis (R. 114). In an answer to a hypo-

thetical question he said there ‘‘might or could’’ be a

causal connection between the accident sued on and the

healed pelvie fractures (R. 140).

On cross-examination the Doctor testified that he could

distinguish between a fracture that was four or five days

old and one that was years old (R. 151). He was put to the

test by being handed two X-rays on which the date was

covered and asked if the fractures shown in the pelvis were

fresh or old. These X-rays (Defendant’s Exhibits 4 and 5)

were X-rays taken of the petitioner on November 14, 1946,

immediately after petitioner was injured, and November 20,

1946, a week later (R. 202). When finally driven into a

corner the doctor had to admit that ‘‘he didn’t know

whether they were four days old or years old’’ (R. 157).

Respondent, on the other hand, introduced evidence that

the pelvic fractures shown in the X-rays taken on the night

of plaintiff’s accident, and a week later, were at least sev-

eral months old (R. 226, 203, 235). This exposé of peti-

tioner’s professional medical witness, together with the

uncontradicted evidence of respondent’s doctors that the

pelvic fractures shown by the X-rays were old at the time

of petitioner’s accident while employed by respondent, was

so convincing to the Trial Court that he remarked in the

argument on respondent’s motion for new trial before him

that it was his opinion ‘‘that the so-called pelvic fracture

had nothing to do with this case’’ (R. 280; see, also, R. 305).

Respondent’s evidence thus demonstrated that petitioner,

in this action, was endeavoring to palm off pelvic fractures

actually suffered in the 1942 accident. The action of the

Appellate Court in reversing and remanding for a new trial

has for the time being thwarted this effort—hence peti-

tioner’s persistent efforts to somehow get this verdict

reinstated.

fet

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a tet Leni ate. gia 5 a AIC

In cases where this Court has had jurisdiction some mem-

bers of the Court have remarked how this class of cases

distracts the Court’s energies from questions of national

importance. There is utterly no justification in this case

for burdening the Court with a petition to review a judg-

ment so plainly non-reviewable. Petitioner is assured of a

recovery on a new trial which he might well have had by

now, but for counsel’s refusal to recognize that settled

principles of law apply to his client as well as to all other

litigants. The petition should be denied.

Respectfully submitted,

Harotp A. Smita,

Grorce B. CHRrisTENSEN,

Epwarp J. WEenprow,

Attorneys for Respondent.

Winston, Srrawn, Suaw & Brack,

Of Counsel.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.