# Reply Brief Petitioner — Illinois ex rel. Woods v. Tuohy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0309%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief Petitioner - **Published:** January 1, 1950 - **Citation:** 340 U.S. 830 ## Text 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, ? rarer rmnrremnemennenemeenme —— —a a a ee ee 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, ee 2 ae, : 3 2 AAT Pa eae TARAS AME AEE TTS ft Bie. 6 — > 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 ——— F i iS 4 u aq m4 6 H ad s i f te tZ FRC I al aaa 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-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 ‘ 4 MT? mettewrage “rae = ae SITET PPS IIEA VATED BRE LRT MME Est Nt eee gee SORE EARS iM 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: “