Reply Brief of Petitioner — Gooch v. Wilhite

SEP 8 i950

CHARLES ELMORE pane:

IN THE

Supreme Court of the United States

Octoser Term 1950

7 NO. 125

E WILLIAM EDWARD WOODS, Petitioner,

E v.

-_ THE NEW YORK, CHICAGO & ST. LOUIS RAILROAD

i COMPANY,

& Respondent.

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- set aes

PETITIONER’S REPLY BRIEF.

oie Mechiy

Wituiam Epwarp Woops

Petitioner

By Harry G. Fuerst

Scuwarrzperc & Barnetr

Attorneys for Petitioner

77 West Washington Street

Chicago 2, Illinois

Harry G. Fuerst

Harry P. Warner

Hersert S. Ocpen

Of Counsel

816 Connecticut Avenue

Washington 6, D.C.

Press or Brron S. Apams, WasHrncton, D.C.

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INDEX

PETITIONER’s RepLy Brier

Page

The Merits.

I. Respondent’s Contention That It was Deprived

of the Defense of Contributory Negligence is

Wholly Untenable Even Though There Had Not

Been Any Violation by the Respondent of Its Duty

to Comply With the Federal Boiler Inspection

and Federal Safety Appliance Acts ............ 12

Jurisdiction.

I. This Court Has Jurisdiction to Review the Orders

of the Illinois Supreme Court in the Mandamus

PN. esx hedkuviesdinshandiveskcantetences 14

II. This Court Has Jurisdiction to Review the Judg-

ments of the Appellate Court of Illinois and the

Orders of the Supreme Court of Illinois Dismiss-

ing Petitioner’s Writ of Error and His Petition

for Leave to Appeal Which are Final Judgments

and Decrees Within the Purview of Title 28, United

States Code, Section 1257(3). In Any Event They

are Further Subject to Review Under the Provi-

sion of Title 28, United States Code, Section

pL OP PE Re rere he ty ee ree ern keh Peri 19

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Se CE UME eave keg huge pi eae 24

TABLE OF CASES

Armstrong v. Obucino, 300 Ill. 140 .................. 17

Bailey v. Central Vermont Ry., 319 U. S. 350........ 26

Brady v. Southern Ry. Co., 320 U. 8. 476............ 26

Cuneo v. City of Chicago, 272 Ill. 473................ 26

Cusson v. Canadian Pacific Ry. Co., 2d Cir. 1940, 115 F.

Ea ety Ean PI aad io a ean 11

Department of Banking v. Pink, 317 U. S. 264...... 22, 26

ii Index Continued.

Page

Dickinson v. Petroleum Conversion Corporation, 70 S.

EE kee tae haa cUG bans cindakicuss><es é 9, 20

Dinaffria v. Brotherhood of Teamsters, 399 Ill. 304.. 26

Fairport P. & E. R. Co. v. Meredith, 292 U. S.589.... 19

Gospel Army v. City of Los Angeles, 331 U.S. 543.... 21

Haseltine v. Central Bank of Springfield, 183 U. S.

WE Ca a ee aN ee kas 20, 21

Hill v. Atlantic Coast Line R. R. Co., 336 U.S. 911.... 26

Louisiana Navigation Co. v. Oyster Commission, 226

ee a cs wes's « 21

mane wv. ee, Se TT. OER... .. 2... 16

Mitchell v. Geister, 337 Ill. 390, 86 N. E. 2d 293 1949)..

People ex rel. German Insurance Co. v. Williams, 145

Si tuk akin Wavicwedngncesaeeeerss 14

People ex rel. Kerner v. Keeney, 399 Ill. 611........ 15

People ex rel. Mike Magloie v. Joseph Siman, 284 Ill. 28 17

People ex rel. Modern Woodmen of America v. The

Cireuit Court of Washington County, 347 Il. 34.. 17

People ex rel. Prince v. Graber, 397 Il. 522.......... 15

People ex rel. John A. Swanson v. James J. Kelly,

en in Reddit dra oem» » 18

People ex rel. Woll v. Graber, 394 Ill. 362............ 15

Reeves v. Beardall, 316 U. S. 283.................... 23

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

ng hak Mini nenib ae nok lean. pares 26

Richfield Oil Corporation v. State Board, 329 U.S.69.. 22

Roddy v. Armitage Hamlin Corporation, Inc., 401 IIl.

le ee le oe ad win dc kin in 24, 25

Schneiderman v. Interstate Transit Lines, Ine., 401

Cte. i dindce wae tba aedennsne xis © 23

Sperry v. Wabash R. Co. (D. C. E. D. IlL 1943), 52 F.

iid wiki da nee hak ded wiee ine 6045 22, 25

The Town of Kaneville v. Meredith, 361 Til. 556...... 23

Tiller v. Atlantic Coast Line R. R. Co., 323 U.S. 574.. 26

Wilkerson v. McCarthy, 336 U. S. 53................ 26

ConstTITUTIONAL CITATIONS

Illinois Constitution, Article Il, Paragraph 19...... 18

Illinois Constitution, Article VI, Paragraph 2........ 14

Illinois Constitution, Article VI, Paragraph 11...... 25

Index Continued. iii

Sratutes Crrep Page

Federal Employers’ Liability Act, 45 U. S. C. §50-60,

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

il, 1000, ©. G05, G3 Biat. 1606, ........5.0..065 4,12, 22

Federal Boiler Inspection Act, 45 U. 8. C. §23; Acts

of February 17, 1911, c. 103, 36 Stat. 913; March

4, 1915, c. 169, 38 Stat. 1192; June 7, 1924, ec. 355,

43 Stat. 659 ....... 4, 5, 6, 7, 11, 12, 13, 18, 22, 23, 24, 27

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

of April 14, 1910, c. 160, 36 Stat. 298....... 4,7, 9, 11, 12,

18, 22, 24, 27

Title 28, United States Code, §1257(3) ............ 3, 4, 19

Title 28, United States Code, §1651.................. 4,19

Federal Rules of Civil Procedure, 54-B .............. 23

Re AM EE eae conse vebanieascusis 24

Rvutes oF INTERSTATE COMMERCE CoMMISSION

Rule 129, C. F. R. Title 49, Parts 1-91, See. 91.129.... 22

Rule 131, C. F. R. Title 49, Parts 1-91, Sec. 91.139.... 22

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TREO AE OS AEA PAD LO SAE ,

fo i BTA HENGE PEAT PR ERI 8 haat oe

. NN I ARERR IER Nee cay am

ne

IN THE

Supreme Court of the Anited States

Octoser Term 1950

NO. 125

WILLIAM EDWARD WOODS, Petitioner,

v.

THE NEW YORK, CHICAGO & ST. LOUIS RAILROAD

COMPANY,

Respondent.

PETITIONER’S REPLY BRIEF.

Your petitioner believes that the interest of justice re-

quires him to reply to respondents’ brief in opposition to

his petition for writ of certiorari in this cause, and that

the interest of clarity and justice warrants the filing of a

reply brief.

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.

BAe Res Pe a

2

In this way, the misstatements of law and fact and the

evasions and omissions contained in respondent’s brief,

can and will be fully demonstrated, to the end that the

iniquitous disregard by the Appellate and Supreme Courts

of Illinois of petitioner’s statutory and constitutional rights

be brought to light, and that the legalistic smoke-screen with

which respondent seeks to enshroud and camouflage the

gross injustice inflicted upon petitioner, be dispelled.

The petitioner’s reply presents with clarity and fullness,

the answers to all of the issues impelling this Court to re-

invest this petitioner with all his legal and equitable rights

that both the congressional laws and the Constitution of the

State of Illinois and the United States have bestowed upon

him. All of these rights the record patently discloses have

been despoiled and destroyed by the Illinois Courts, as a

result of which the petitioner has lost wages in the amount

of $14,000.00 to date.

The respondent railroad company contends, in fine print,

(Resp. Brief in No. 125, pp. 11-12) that even though pe-

titioner will be precluded from recovering under the Fed-

eral Boiler Inspection Act on a second trial of this action

under the opinion of the Illinois Appellate Court he could,

after a foredoomed appeal to the Appellate Court, petition

the Supreme Court of Illinois for leave to appeal. If the

Supreme Court of Dlinois should finally hold that the pe-

titioner was entitled on the evidence already adduced to the

instructions which were given with respect to the Boiler

Inspection and Safety Appliance Acts, the petitioner could

then have a third trial to vindicate his rights subject to

further appeals and further delay. What chance would this

petitioner have on a second or third appeal to the Supreme

Court of Illinois in view of its conduct in refusing to cor-

rect the gross injustice which the Appellate Court has in-

flicted upon petitioner?

It is safe to predict that petitioner’s loss of earnings by

the time this protracted course of litigation is finally con-

cluded will have doubled or tripled that already sustained,

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—_—

3

provided the petitioner can stand the expense of such pro-

tracted litigation and lives to see it through. There is no

truer axiom in this situation than, ‘‘ Justice delayed is justice

denied.’’

Respondent in No. 43 does not dispute, but tacitly admits,

that the refusal of the Illinois Supreme Court to permit pe-

titioner to file his proffered petition for writ of mandamus

has every attribute of finality of the highest court of the

State to enable this court to review the ruling of the Illinois

Supreme Court under the provisions of Sec. 1257 (3) of

Title 28 of the United States Code. The respondent affirm-

atively admits (Resp. Brief in No. 43, p. 3) that the man-

damus action presented federal questions; however, they

contend that this erroneous decision of the Illinois Supreme

Court which they studiously and understandably refrain

from undertaking to defend on the merits, is sustainable

under Illinois law. We assert that under Illinois law this

contention is base and fallacious. The reasons are two-fold:

1. The substantive rights and liabilities of the parties

are created and defined exclusively by federal law, stat-

utory and constitutional, and must be determined uni-

formly in all courts throughout the nation, including

the courts of the State of Illinois, in accordance with

federal decisional law.

2. The local law of Illinois and the rules of Lllinois

courts relating to and regulating practice and pro-

cedure governing appeals and other forms of review do

not present the type of non-federal question behind

which the glaring errors of the Illinois Appellate and

Supreme Courts in the decision of the substantive fed-

eral questions in this cause can find immunity from

correction by this Court.

Respondent’s contention in No. 125 is that the orders of

the Illinois Appellate and Supreme Courts are not ‘‘final

judgments or decrees’’ within the meaning of 28 U. S. C.

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4

Sec. 1257 and it attempts to brush off the power and

jurisdiction conferred on this Court by Section 1651 of Title

28, United States Code, by a dogmatic and unsupported foot-

note to the effect that that section is not a source of juris-

diction to review state court judgments.

The Court must repudiate respondent’s contention ; other-

wise the desired uniformity which this Court has emphat-

ically said must be applied in all courts, state and federal,

for the protection of the injured interstate carrier em-

ployees, would fail.

The claim by the respondent that the record does not sup-

port petitioner’s contentions that the decisions of the Ap-

pellate and Supreme Courts of Illinois denies to him the con-

stitutional guaranty of his right to a trial by jury, and

of equal protection of the laws and do not nullify his fed-

erally created rights provided by the Federal Employers’

Liability Act, the Federal Boiler Inspection Act and the

Federal Safety Appliance Act, is as baseless as it is false.

Does respondent’s counsel believe that this Court will not

examine the record, including the proceedings on and the

evidence adduced at the trial; likewise the Appellate Court’s

opinion and the subsequent proceedings, before passing on

these applications for certiorari?

Does not the record (R. 55-57; ER. 7-9) contain an ad-

mission of guilt, both under the Federal Employers’ Liabil-

ity Act and the Federal Safety Appliau.e Act, made by

counsel and spokesman for the railroad company at the

opening of the trial, a year after he had taken petitioner’s

deposition by which the railroad company and its counsel

was fully informed of petitioner’s claims as to the ineffi-

ciency of the hand-brake on the coal car which permitted it

to drift from a safe to an unsafe place after the brake was

applied? (R. 56, 84, ER. 8, 36)

Is it not true that petitioner testified that the rear head-

light on the tender of the backing locomotive was defective,

and looked as if it had been smashed and as if the reflector

was off, and that it was out of focus and cast its light up

5

in the air at an angle of about 45 degrees, leaving the area

of 50 to 75 feet immediately behind the backing tender in

complete darkness and disabling him from seeing the fouling

coal car until it was too late for him to get to a place of

safety and to avoid the grievous injuries he sustained when

he was caught, crushed, and rolled in the narrow space be-

tween the side of the backing tender and the side of the

fouling coal car?

Did not the Appellate Court, to which this same counsel

again admitted liability in his printed brief and oral argu-

ment in open court, state in its opinion that petitioner’s

testimony as to the defect of the rear headlight created a

jury question if the defect of the rear headlight could be

made the basis of a violation of the Boiler Inspection Act?

Does counsel expect this Court to subscribe to the propo-

sition that the permanent fixed-foens rear headlight was not

a part and an appurtenance of the locomotive and within

the scope and command of the Federal Boiler Inspection

Act irrespective of the particular use to which the locomo-

tive was being put at the precise moment of injury, and

irrespective of the limited requirements of the rules of the

Interstate Commerce Commission even under the far too

narrow construction which the Appellate Court has ascribed

to them?

| Does counsel seriously expect this Court to say that a

- bad back-up or rear headlight permanently affixed to the

tender by a fixed-focus method of application to light the

way through the darkness of an unlit railroad yard, is better

| than no light at all and constitutes no violation of the Fed-

eral Boiler Inspection Act because it ‘‘created’’ no addi-

tional peril, despite the fact that the peril which resulted in

petitioner’s injury would not have existed if the back-up

light had been in proper condition, lighting the area of

greatest danger in the immediate vicinity of the backing

tender and enabling petitioner to see the fouling coal car

in time to avoid injury, notwithstanding the admitted negli-

gence of the railroad company in permitting the coal ear to

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