Reply Brief Petitioner — Illinois ex rel. Woods v. Tuohy

8 1950

CHARLES EL Mor:

WAL Uta

IN THE

Supreme Court of the Anited States

Octoser Term 1950

No. 43

PEOPLE OF THE STATE OF ILLINOIS ON

RELATION OF WILLIAM EDWARD WOODS,

Petitioner,

v.

JOHN M. TUOHY, Presiding Justice, GROVER C. NIE-

MEYER and MICHAEL FEINBERG, Justices, con-

stituting the First Division of the Appellate Court of

Illinois for the First District, Respondents.

PETITIONER’S REPLY BRIEF.

Witu1am Epwarp Woops

Petitioner

By Harry G. Fuerst

ScuwartzBerc & BaRNETT

Attorneys for Petitioner

77 West Washington Street

Chicago 2, Illinois

Harry G. Fuerst

Harry P. Warner

Hersert S. OapEN

Of Counsel

816 Connecticut Avenue

Washington 6, D. C.

Press oF Byron S. Apams, WASHINGTON, D. C.

iii ego cm

INDEX

PETITIONER’s Repty 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

NL SRA eipd ab 64-0 on dos Wad dee eee ee kaee's 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

BS ae eR ae ae Cpe aeons 19

Pe CR Gs bos CU had awk ok wv keeS 19

Wk IIIS ideo rat cy Ure ce abou woes 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. S. 476............ 26

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

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

EE ina ihe Shek Aa cad nh A 0 cA ON OH 11

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

ee Blas PEER LIONEL NET TE PRINT EE NET EIN Md LAR Rae TREN REP OD LN PTC RE ERI ot

ii Index Continued.

Page

Dickinson v. Petroleum Conversion Corporation, 70 S.

EE bie KEKE Od pik TRESS TS OR Aa SS I 19, 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. 8S. 543.... 21

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

MP ASN aNbS cats Lev Vane lvoe ee bebekdsacesinxs 20, 21

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

Louisiana Navigation Co. v. Oyster Commission, 226

ME MAN iw Wiad AW ESRE Eby eos SA aNOANE LEH OKC OOS 21

easine ¥. Teme, Toe VU. Gi G8. oe. eka os cevisicsses 16

Mitche'; v. Geister, 337 Ill. 390, 86 N. E. 2d 293 1949). .

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

PM shred Foshan dow tether es kev ank bode evueNe 14

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

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

People ex rel. Modern Woodmen of America v. The

Circuit Court of Washington County, 347 Ill. 34.. 17

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

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

GE EE SIRO. inh os oer kk 6 Red hee hae 204088 18

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

Reeves v. Beardall, 316 U.S. 283..............0000.- 23

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

Se Te ohooh ss Oa eA deed eeeadad eane ces 26

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

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

EE CEE Se lawless benkensenscibaeescatnaen 24, 25

Schneiderman v. Interstate Transit Lines, Ine., 401

Ree e ee ver ere re re ee een eee 23

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

NES. ME adc has Aco ne ste deerves chee ann okies s 22, 25

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

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

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

CoNSsTITUTIONAL CrraTIONS

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

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

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

SAVES RON PRES

Index Continued. ii

Sratutes Crrep Page

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

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

11, 1939, ¢. 685, Bi Mies, SOM osc ee 4,12, 22

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

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

4, 1915, ¢. 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,

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

BED FCONOO BM GEE os nic isnnsdnveve svesscveees 24

Rvuues or InTerRstaTE 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, See. 91.139.... 22

3 PN, 5 Eva pee

ae aE OBERLIN ORT eame aN SOLENT DER BR Ri FNS na ame Race

IN THE

Supreme Court of the Anited States

Ocroser Term 1950

No. 43

PEOPLE OF THE STATE OF ILLINOIS ON

RELATION OF WILLIAM EDWARD WOODS,

Petitioner,

v.

JOHN M. TUOHY, Presiding Justice, GROVER C. NIE-

MEYER and MICHAEL FEINBERG, Justices, con-

stituting the First Division of the Appellate Court of

Illinois for the First District, Respondents.

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.

Ren i an ea, ee

PELE. OLE LTE TOBY OE ae e-

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 Illinois 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 See. 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 Illinois

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.

PPM SERGI ORE Te geen Rye Mae,

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See. 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 Appliance 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

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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-focus 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-foeus 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 car to

6

be in its dangerous position fouling a main track of a busy

railroad yard?

Do respondents contend that the opinion and ruling of

the Illinois Appellate Court on the subject of petitioner’s

right to recover full damage, if the railroad company used

a locomotive with a back-up light which was defective and

out-of-order and failed to perform the function it was de-

signed and intended to perform, as the jury was concededly

warranted to find in this case, do not constitute a final,

conclusive and binding bar, upon any new trial under that

opinion, to petitioner’s right to full damages because of the

violation by the railroad company of the provisions of the

Federal Boiler Inspection Act irrespective of negligence

which any jury might conceivably attribute to petitioner?

Do respondents contend that on any new trial different

or additional evidence can alter the basis or avoid the effect

of the Appellate Court decision on this subject?

Can respondents suggest any new, different or additional

evidence which would raise the bar to petitioner’s right to

recover under the Appellate Court’s opinion for violation

by the railroad company of the provisions of the Federal

Boiler Inspection Act in using a locomotive in backward mo-

tion with a defective back-up or rear headlight?

Do respondents contend that the railroad company at any

time during the trial claimed or asserted that it was entitled

to any diminution of the damages to which petitioner un-

disputably is entitled because of its conceded negligence,

regardless of the condition of the rear headlight, and re-

gardless of the condition of the hand brake on the coal ear,

by reason of any contributory negligence on the part of

petitioner?

The answers to these questions, which are self-evident

and which respondent’s briefs in this court make crystal —

clear, cry out to high heaven against the brazen, flaunting

disregard by the Appellate and Supreme Courts of Illinois

of the laws of the Congress and the Constitution of the

United States, the laws and Constitution of the State of

Illinois, and the clear, emphatic decisions of this Court.

| REAP RRA OI OR PE gees eerie on Ses .

RSS OOS « i ae Sener Sea =

7

On the question of petitioner’s right to recover full dam-

ages for the violation by the railroad company of the pro-

visions of the Federal Boiler Inspection Act, the respond-

ent, while refraining from making a forthright admission

that petitioner will be precluded on any new trial under the

Appellate Court’s opinion from recovering full damages

for violation of the Federal Boiler Inspection Act, does not

have the hardihood to contradict that proposition. Counsel

indulges in the subterfuge that petitioner on a new trial

may recover full damages by reason of the railroad com-

pany’s violation of the Federal Safety Appliance Act be-

cause (Respondent’s Brief in No. 125, p. 13) ‘Conceivably,

he may introduce additional evidence that the brake was

actually set ‘with due care in the normal, natural and usual

manner’ ’’; and ‘‘That, contrary to what respondent’s wit-

nesses testified, the slope of the spur track was toward the

main’’ and, therefore, the decisions of the Appellate Court

is not final. This subterfuge is as illusory as it is insincere.

It does not in any wise negative the proposition that pe-

titioner has, by the Appellate Court’s ruling, been denied

the right to recover under the Federal Boiler Inspection Act.

As we have pointed out, there was no contest, and it was

in effect admitted at the trial, that the brake on the coal car

was inefficient, permitting it to drift from its safe position

to its dangerous position (R. 56, ER. 8) and the evidence,

admitted expressiy without objection, which was withdrawn

after it had been sustained by the trial court (R. 71, 73,

ER. 23, 25), establishes the fact of the inefficiency of the

brake on the coal car and its causal connection with peti-

tioner’s severe injuries.

Respondent’s counsel in No. 125, apparently viewing the

trial of a lawsuit as a game of ambush and ambuscade and

with shocking insincerity and attempted deception, denies

his admission that the brake on the coal ear was defective.

Let us examine the record (R. 56, ER. 8):

‘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.

8

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

ing the car. 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 between there, but he would have to

hunch in close * * *.’’

The record is devoid of any justification for the assertion

in respondent’s brief in No. 125, p. 6, that counsel made his

opening statement to the jury before he had had an oppor-

tunity to interview his witnesses. It passes credulity that

an experienced trial counsel of an eminent law firm repre-

senting a great railroad company did not interview his wit-

nesses or learn the facts until he put them on the witness

stand. Even if he were so negligent in preparing the de-

fendant’s case for trial, he nevertheless was the official

spokesman for the defendant railroad company; and .the

court, the jury and opposing counsel were entitled to rely

upon his statement in opening the case as to what were the

issues that were to be tried. He never at any time, until

after the jury had rendered its verdict, attempted to with-

draw or sought to amend or correct that statement. On the

contrary, he expressly withdrew objection after it had been

sustained by the trial court (R. 73, ER. 25) to the question:

**Q. What would you say from the point that a brake

was applied where you saw it applied when this car

was in the clear to where the car was when you started

to work with your engine and your body came in con-

tact with that car whether that brake was efficient?

**Mr. Moir: I object to that if your Honor please.

‘‘The Court: Objection sustained.

**Mr. Fuerst: May I respectfully——

‘‘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.’’

FE RPREENG SALE AR NYE

9 .

With respect to the statement in respondent’s brief in

No. 125, page 5, that ‘‘respondent vigorously contested any

liability under the Safety Appliance Act at the trial,’’ the

lack of record references speaks eloquently of the falsity of

this statement. On the contrary, the respondent railroad

company did not offer any evidence whatsoever that the

hand brake on the coal car was efficient. It did not call the

brakeman who set the brake on the coal car when it was

put in on the spur track as a witness. It did not call any-

body who must have operated the brake after the accident to

testify to its condition, and it is inconceivable that the coal

car was left in its dangerous position after causing injury

to one of respondent railroad company’s employees. It did

not call any car or brake inspector to testify to the condition

of the hand brake. It did not produce any profile map show-

ing the grade of the spur track, as it most certainly would

have done if there were any honest question as to the di-

rection of the grade of that track.

With respect to the present claim of respondent in No.

125 that the ‘‘only evidence 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, ‘the drift of the coal ear toward the main track

was impossible,’ ’’ the respondent railroad company in its

reply in the Appellate Court of Illinois stated, on p. 7:

‘Reading the cold printed testimony of defendant’s

three witnesses, we concede that the words used by two

of them (McKinney and Thomas) may be ambiguous as

to whether the Clifford siding ‘sloped’ up or ‘sloped’

down from the O. P. Main. The testimony of Farr that

the siding ‘slopes away from the O. P. main’ (Abst. 135)

plainly connotes a downward slant away. McKinney

said the track ‘slopes to the West’ (Abst. 124). This

could mean either an uphill or downhill slant. Webster’s

New International Dictionary (2d ed.) gives as one of

the definitions of the verb ‘slope’, ‘to have a slant,’

and as one of the definitions of the noun ‘slope’, ‘up-

10

ward or downward slant or inclination.’ Thomas said

the Clifford siding has ‘an incline to the West’ (Abst.

138). In the same dictionary we find one of the mean-

ings of ‘incline’, is ‘ascent or descent’.

“Tf the only things we had to go by were those few

- words without the aid of Farr’s testimony, we confess

it might be embarrassing to tell which way the slant

was.”’

The testimony of the fireman that the siding ‘‘sloped

away from the O. P. main”’ literally and logically refers to

horizontal distance and not to vertical direction. ‘‘An in-

cline to the West’’ in ordinary lay language connotes a rise

as the track proceeds in a westerly direction. ‘‘Slopes to the

West’’ is meaningless as to whether it slopes up or down.

It is perfectly apparent from reading the record as a

whole that there was no contest whatever with respect to

the inefficiency of the brake of the hand car or the direction

of the slope of the spur track. Respondent’s claim in this re-

spect is a pure afterthought conjured up on its combing the

record after the trial and after the jury had rendered its

verdict in an effort to secure a new trial.

There was no claim at the trial that the brake on the coal

car was not inefficient or that the coal car did not drift from

its safe to its dangerous position. With or without the ad-

mission of counsel in opening the case to the court and jury

and the testimony to which we have referred, the photo-

graphs, Defendant’s Exhibits 2 and 3, quite plainly reveal

that the spur track, which is the one at the right of the pho-

tographs, rises as it comes into the foreground of the pic-

ture and away from the O. P. main. (R. 175-{77),

The three defense witnesses, McKinney, Thomas and

Farr, offered by the carrier respondent, as disclosed by the

record, were so highly prejudiced and biased in favor of

the respondent that their testimony can be likened unto

potter’s clay in the hands of respondent’s counsel. Their

own contradictions on the witness stand and likewise the

een

photographic exhibits clearly made their testimony in its

entirety, unbelievable. If respondent’s contentions had the

basis of truth, can this Court conceive that with all the engi-

neers in the employ of this carrier, not a single one was pro-

duced to testify with measurements or mathematical cer-

tainty regarding the pseudo condition of a grade claimed by

the carrier for the first time, after the action was tried.

In the case of Cusson v. Canadian Pacific Railway Com-

pany, 115 Fed. 2d 430, the court held in a like situation that

where a car was braked and then drifted from the position

where it was braked, resulting in an accident and injury to

the employee this was sufficient to raise a question of fact as

to whether or not the brake on the car was efficient. There

can be no question that the record in the case at bar dis-

closes that the brake on the coal car that fouled the O. P.

main track was inefficient and violated the Safety Appliance

Act, with or without an admission that the brake was in-

efficient at the commencement of the trial.

The Illinois Appellate Court, therefore, deprived this pe-

titioner both of his constitutional rights and the protection

intended and provided for him under the Federal Safety

Appliance Act.

11

ARGUMENT

THE MERITS

I

Respondent’s Contention That It Was Deprived of the De-

fense of Contributory Negligence is Wholly Untenable

Even Though There Had Not Been Any Violation by

the Respondent of Its Duty to Comply With the Fed-

eral Boiler Inspection and Federal Safety Appliance

Acts.

The Illinois Courts flagrantly and erroneously violated

both the Constitution and Laws of the United States by

their refusal to conform to the federal decisional law on

both the Federal Boiler Inspection and Federal Safety Ap-

pliance Acts; and by their arbitrary denial of petitioner’s

‘

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A ae pen eteEe

12

indisputable rights thereunder, have opened a contention

that under the Federal Employers’ Liability Act the re-

spondent may have been deprived, of the defense of con-

tributory negligence.

The carrier respondent under both the Federal Boiler

Inspection Act and the Safety Appliance Act is deprived

of the defense of contributory negligence when either or

both of these acts are violated.

Let us therefore consider this false and baseless claim of

contributory negligence defense, as is now claimed by the

respondent.

The record discloses these facts:

Before midnight on November 14, 1946, petitioner, in the

performance of his duties, was crushed and rolled for a dis-

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

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

side of a tender backing on a main track in respondent’s

dark and unlit yard. The side of a fouling car on a spur

track was admittedly too close to the main track to provide

safe and sufficient clearance.

Now, the respondent in face of this admitted testimony

of entrapment seeks a brass ring on his legalistic carousel,

idem est, another opportunity to have another jury pass

upon the question of the amount of its admitted liability to

this petitioner on the pretended premises that another jury

might award a lesser sum on the alleged unfounded claim of

contributory negligence. This imaginary claim can only be

created on the theory that petitioner failed to see the danger-

ous position of the coal car during the night in an unlit yard

before his accident. Likewise, it may be claimed that his

failure to undertake to jump off the moving tender from the

dangerous position created by the fouling of the main right

of way by the coal car was negligence.

The respondent railroad company’s negligence in permit-

ting the fouling of its track by the coal car is admitted. The

gross and almost criminal negligence of the engineer in

failing to stop the movement which, according to his own

AIOE HI SRL Petras NepRTRE RE Ry

| 13

testimony, he could have done in one-third of the distance

the engine traveled after he saw the dangerous position of

the coal car was proven by his own testimony. (R. 194-8).

If, as the Appellate Court states, the jury was entitled to

find that the rear headlight was out of focus, the negligence

of the respondent railroad company in not repairing it is a

definite issue of negligence, apart from any question of vio-

lation of the Boiler Inspection Act.

The general foreman of the respondent railroad company

in charge of maintenance of locomotives testified that where

there is a defect in the headlight, a new one could be put in,

in approximately ten minutes; likewise, a defect in the re-

flector, it would take forty-five minutes to change it; and if

there is a defect in the wiring of the socket of the bulb, it

takes about thirty minutes to replace the socket. (R. 214-5).

Is it conceivable that under these circumstances of gross

and multiple negligence that a jury can be found that would

attribute negligence to this petitioner under these circum-

stances? The respondent’s multiple negligence presents a

case where the principle of de minimus should be applied.

In fact, we believe that under the federal decisional law

by this Court a motion to direct a jury against finding con-

tributory negligence against petitioner would be properly

sustained.

We therefore submit that any claim for reduction of dam-

ages on account of any negligence which might be attribut-

able to petitioner is unreal and wholly lacking in substance

and should not be the vehicle for further delay in requiring

respondent railroad company to compensate your petitioner

for serious injuries inflicted upon him by the respondent’s

admitted negligence, from which there is no escape except

the flagrant, erroneous violation by the Illinois Courts of

both the Constitution and the laws of the United States and

by their refusal to conform to the federal decisional law an-

nounced by this Court.

et eres sy aterm

Ne IY Gd ny tema sen ey Ral POOR UCN aNaB ner wacsenttoon

14

JURISDICTION

L

This Court Has Jurisdiction to Review the Orders of the

Illinois Supreme Court in the Mandamus Action.

Unlimited jurisdiction in mandamus is conferred upon

the Supreme Court of Illinois by the Constitution of that

State which provides in Article VI, Par. 2, as follows:

‘‘The Supreme Court * * * shall have original juris-

diction in cases relating to the revenue, in mandamus

and habeas corpus, and appellate jurisdiction in all

other cases * * *”’

The power, jurisdiction and authority of the Supreme

Court of Illinois to issue a writ of mandamus is as broad

and untrammelled as was the power, jurisdiction and au-

thority of the King’s Bench in England prior to the fourth

year of the reign of James I. In discussing that question,

the Illinois Supreme Court in People ex rel German Ins. Co.

v. Wiliams, 145 Il. 573 said:

“<The common law of England, so far as the same is

applicable and of a general nature, and all statutes or

acts of the British parliament made in aid of, and to

supply the defects of, the common law, prior to the

fourth year of James L, (excepting certain statutes),

and which are of a general nature, and not local to

that kingdom, are by our statutes made the rule of de-

cision until repealed by the legislature. Thereby the

great body of the English common law became, as far

as applicable, in force in this state.’’

One of the grounds upon which the Illinois Supreme

Court entertains an original action for mandamus is that

there is no other adequate remedy available to correct the

wrong inflicted upon a litigant by an inferior court, and this

jurisdiction is not confined to final orders, judgments and

15

decrees but may be exercised with respect to any interlocu-

tory order which exceeds jurisdiction of the court. In the

ease at bar the Supreme Court of Illinois refused to follow

its own pronouncement of the law germane to the writ of

mandamus prayed for by your petitioner.

In People ex rel Woll v. Graber, 394 IL 362, the Illinois

Supreme Court granted a writ of mandamus to expunge an

interlocutory order of the Superior Court of Cook County

involving federally created rights because the injured party

could not appeal from the interlocutory order held to exceed

the jurisdiction of the Superior Court, namely, an order

requiring the United States Attorney for the Northern Dis-

trict of Illinois to withdraw his appearance for one of the

defendants in an action to recover damages for alleged

breach of contract. In that case the court said:

‘‘Neither the litigant, the attorney or the interest

which the litigant or attorney represent, can appeal

from such order. Nor is there any adequate remedy

available to them other than the writ of mandamus

from this Court.

“<The general power of this Court to issue a writ of

mandamus to an inferior court to expunge from its rec-

ords an order, judgment or decree which is void be-

eause entered without jurisdiction is settled by a long

line of decisions.”’

In People ex rel Prince v. Graber, 397 Tl. 522, the Supreme

Court of Illinois granted mandamus to 2xpunge orders re-

quiring a non-resident plaintiff to appear in the City of

Chicago for pre-trial deposition and staying the prosecution

of the action until he did appear and submit to examination

in an action against the Railway Express Company to re-

cover damages for negligence of the express company while

transporting certain dairy cattle. See also People ex rel

Kerner v. Keeney, 399 Mil. 611.

In the case at bar the questions presented are matters of

national concern involving federally created rights which

16

have been indefensibly violated by the judgment of the

Appellate Court of Illinois. If, as respondents contend, the

judgment of the Appellate Court is not subject to review

and correction by the Supreme Court of Illinois under the

archaic appellate practice in that state in any other way

than by the exercise by the Illinois Supreme Court of its

mandamus jurisdiction, we submit that the denial of that

remedy constitutes an illegal usurpation of substantive

rights and an unwarranted refusal to abide by the rule of

essential uniformity which this Court has said must be

applied in all courts, state and federal, in these railroad

cases.

This Court has had oceasion, in connection with this same

section of the Illinois Constitution, to deprecate the in-

effectiveness of practice and procedure in Illinois in Marino

v. Ragen, 332 U. 8. 561, in which the concurring opinion

states:

‘<The Illinois scheme affords a theoretical system of

remedies. In my judgment it is hardly more than theo-

retical. Experience has shown beyond all doubt that,

in any practical sense, the remedies available there are

inadequate. Whether this is true because in fact no

remedy exists, or because every remedy is so limited

as to be inadequate, or because the procedural problem

of selecting the proper one is so difficult, is beside the

point.””

Because of the mongrel decisions and denial of appellate

relief in Illinois, as is app..rent to this Court in Marino v.

Ragen, supra, and other decisions by the Illinois Supreme

Court, the several different procedures of appeal were in-

stituted by your petitioner. By profound study and legalis-

tie analysis, the Supreme Court of Illinois has in a sense

pronounced that if a litigant chose one method and not one

of the other methods, the litigant erred in selecting the

wrong appellate procedure.

=a oe aM

17

This can be likened only unto Aesop’s Fable of the fox

and the lamb; irrespective of the method or the exense, the

lamb was devoured. And likewise, was the result to the liti-

gant here, because of the theoretical system of remedies in

Illinois.

What constitutes a void order or judgment as distin-

guished from a judgment or order which is merely erroneous

and correctable only on appeal, or by writ of error, has

been stated by the Supreme Court of Illinois in Armstrong

v. Obucino, 300 Ill. 140, as follows:

‘“‘The statement has very frequently been made that

where a court has jurisdiction of the parties and sub-

ject matter, its decree, however erroneous, can only be

attacked on appeal or error; but the rule is subject to

an exception equally well settled—that a decree may

be void because the court has exceeded its jurisdiction.

* * * Courts are limited in the extent and character

of their judgments, and if they transcend their lawful

powers their judgments and decrees are void and may

be collaterally impeached wherever rights claimed

under them are brought in question. The doctrine that

where a court has once acquired jurisdiction it has a

right to decide every question which arises in the canse.

and its judgment or decree, however. erroneous, cannot

be collaterally assailed, is only correct when the court

proceeds according to the established modes governing

the class to which the case belongs and does not tran-

seend in the extent and character of its judgment or

decree the law or statute which is applicable to it.’’

In People ex rel Modern Woodmen of America v. The

Circuit Court of Washington County, 347 Ml. 34, it was held

that jurisdiction of a court in a particular case includes

not alone the power to hear the cause but likewise involves

the power to render the particular judgment entered, and

every act of the court beyond that power is void. See also

People ex rel Mike Maglori v. Joseph Siman, 284 Ill. 28;