Petition for Writ of Certiorari — Burlington Northern Railroad v. Anderson

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S5-157q | ite

MAR 14 1986

No. 85- ~DANIOL, JR-

JOSEFH F--

-—— -

_— —

In the Supreme Court of the United States

October Term, 1985

BURLINGTON NORTHERN RAILROAD COMPANY,

Petitioner,

VS.

HAROLD E. ANDERSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

Tuomas E. Deacy, Jr.*

Epwarp W. MuLLEN

DereK E. Woop

Deacy & DEAcy

1000 Bryant Building

1102 Grand Avenue

Kansas City, Missouri 64106

(816) 421-4000

Counsel for Petitioner Burlington

Northern Railroad Company

*Counsel of Record

Date: March 17, 1986

E. L. Menvennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

IT.

QUESTIONS PRESENTED TOR REVIEW

WHETHER A STATE, HERE MISSOURI, IMPER-

MISSIBLY DEPRIVES INTERSTATE RAIL CAR-

RIERS OF THE EQUAL PROTECTION OF THE

LAW IN VIOLATION OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTI-

TUTION BY MANDATING THE SUBMISSION OF

ADMITTEDLY UNFAIR GENERAL NEGLIGENCE

INSTRUCTIONS TO JURIES IN F.E.L.A. CASES

BUT REQUIRING THE SUBMISSION OF SPECIFIC

NEGLIGENCE INSTRUCTIONS IN ALL OTHER

NEGLIGENCE CASES, CONTRARY TO THE CLEAR

DECISIONS OF THIS COURT?

WHETHER SUCH A REQUIREMENT PLACES AN

UNDUE BURDEN ON INTERSTATE COMMERCE

IN VIOLATION OF ARTICLE I, SECTION 8 OF

THE UNITED STATES CONSTITUTION WHEN NO

LOCAL INTEREST IS INVOLVED?

PARTIES TO THE PROCEEDINGS BELOW AND

SUPREME COURT RULE 28.1 STATEMENT

In compliance with Rule 28, Petitioner states that

Petitioner’s parent company is Burlington Northern Inc.

The partially owned subsidiaries and affiliates of Peti-

tioner and Petitioner’s parent are:

Burlington Northern Railway Company:

The Belt Railway Company of Chicago

Camas Prairie Railroad Company

Davenport, Rock Island and North Western Rail-

way Company

The Denver Union Terminal Railway Company

Houston Belt & Terminal Railway Company

Iowa Transfer Railway Company

Kansas City Terminal Railway Company

Keokuk Union Depot Company

The Lake Superior Terminal and Transfer Rail-

way Company

Longview Switching Company

The Minnesota Transfer Railway Company

Paducah & Illinois Railroad Company

Portland Terminal Railroad Company

The Saint Paul Union Depot Company

Terminal Railroad Association of St. Louis

Trailer Train Company

The Wichita Union Terminal Railway Company

Winona Bridge Railway Company

Burlington Northern Inc.:

New Mexico & Arizona Land Co.

TABLE OF CONTENTS

Questions Presented for Review ~......0......2000....2.2-ececeeeeeeeee I

Parties to the Proceedings Below ..................0...0..2.....000000 II

I os esmegweninoeiannioinis III

i messnmenmtnmnoneine IV

os rates nrteddemmeniesasawemncnsisamionsins 1

Jurisdictional Statement ...... Ft A AOR os OTS Oe SOT EEE 2

EE gs 3

ET 3

Reasons for Granting the Writ —.0000220 ee ceeeeeeeee 8

I. The Mandatory Instruction System of the

Missouri Supreme Court Requires the Use of

a “General Negligence” Jury Instruction in

F.E.L.A. Cases, Contrary to the Missouri Re-

quirement That All Other Negligence Cases

Be Submitted to the Jury on Specific Factual

Claims, Thus Denying Railroad Defendants

Equal Protection of the Law in Violation of

the Fourteenth Amendment to the United

States Constitution, and Contrary to the Deci-

sions of This Court That F.E.L.A. Cases Filed

in State Courts Are to Be Treated Proce-

durally in the Same Way As Other Negligence

Suits, and Contrary to the Decisions of the

Highest Courts of Other States 00000000... 8

II. Missouri’s Jury Instruction Requirement for

F.E.L.A. Cases Places an Undue Burden on

Interstate Commerce in Violation of Article I,

Section 8 of the United States Constitution ... 21

Table of Authorities

Cases:

Arkansas Electric Cooperative Corp. v. Arkansas

Public Commission, 461 U.S. 375, 103 S.Ct. 1905,

| PS ES Re - ; SReeenmnmrnnnunarncret senna rene 22

Atlantic Coastline R.R. Co. v. Ivey, 148 Fla. 680,

DS ee Bee Cee BGED chee en. 19

Beard v. Railway Express Agency, Inc., 323 S.W.

Be RE ARS rcectnrve nase ee 14

Beave v. St. Louis Transit Co., 212 Mo. 331, ill

Be Se ND cate eee clone 13

Best & Co. v. Maxwell, 311 U.S. 454, 61 S.Ct. 334,

Be ee ee SE nccesnccedeseasateeceedenes ae eames 23

Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.

BE Fiitcsitelas iapale cleanses adensaiadiacanteamemaiaiaiaion 16, 17, 20

Chesapeake & Ohio a Co. v. DeAtley, 241 U.S.

310, 36 S.Ct. 564, 60 L.Ed. 1016 (1916) .............. 9, 20

Chesapeake & Ohio Ry. Co. v. Meadows, 119 Va.

RO ee ) ) pmeeentenarone ears ben narra 11,12

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.

Be OD sececicin cecal ceiceenlopeandinnihinineongirsateaiaivns 18

Davis v. Farmers’ Co-op. Equity Co., 262 U.S. 312,

43 S.Ct. 556, 67 L.Ed. 996 (1923) ....................... 22

Dice v. Akron, Canton & Youngstown R. Co., 342

U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398 (1952) ....9, 10, 20

Dick v. Great Northern Ry. Co., 12 Wash.2d 364,

BE SE IE ED = siecethnictsccccinidemeninnceatides 12

Dick v. Scott Construction Co., 539 S.W.2d 688

ERIE: MONNTND - scicsesisandsaesbis:iudisaneonbintapbieentcbaguedmsbnastas 13

Douglas v. Hoeh, 595 S.W.2d 434 (Mo.App. 1980) 13

Eli v. Reading Co., 424 F.2d 758 (3rd Cir. 1970) .... 16

NIRS

Feldewerth v. Wabash R.R. Co., 181 Mo.App. 630,

ST Oi. Pe CUED | ctcenctactbbiatlediend: 13

Gallick v. Baltimore & Ohio R.R. Co., 372 US.

108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963) —........... 17

Georgia Southern & Florida Ry. v. Seven-Up Bot-

tling Co., 175 So.2d 39 (Fla. 1965) ~2000022.. 19

Gulf, C. & S.F. Ry. Co. v. Ellis, 165 U.S. 150, 17

AN. Bie, GE ate GU CD acartrenetctnncccece 19

Johnson v. Missouri-Kansas-Texas R.R. Co., 334

i ore GE TU. Bee seco 14

Kahn, et al. v. Southern Ry. Co., 202 F.2d 875

CRIES SARs ENED eascicehshisicnsncncclacesientidactetiexachenbiaremecliaaldidaoas 23

Kassel v. Consolidated Freightways Corp. of Del-

aware, 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d

Bee LIENS benedict miecatanioninnsakaeniaeuiennbnaanane 24

Killian v. Albert Wenzlick Real Est. Co., 89 S.W.

eG Fe CI, : TIE) etceiineine 13

Luckey v. Avon Products, Inc., 589 S.W.2d 364

CRI TUN. TTY ainrcescasnranitesseoneltanannahhelbasacaiglenmianigeics 13

McIntyre v. Whited, 440 S.W.2d 449 (Mo. 1969) ... 13

McKnett v. St. Louis & San Francisco Ry. Co., 292

U.S. 230, 54 S.Ct. 690, 78 L.Ed. 1227 (1934) ...... 18

McLaughlin v. State of Florida, 379 U.S. 184, 85

S.Ct. 283, 138 L.Ed.2d 222 (1964) .......................... 20

Miller v. Norfolk Southern Ry. Co., 240 N.C. 617,

OS. Be Bee Cee) steed 12

Miller v. United Railways Co. of St. Louis, 155

Mo.App. 528, 134 S.W. 1045 (1911) —..00 ww... 13

Minneapolis & St. Louis R.R. Co. v. Bombolis, 241

U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961 (1916) ........ 9

Mondou v. New York, New Haven & Hartford

R.R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327

( ZIREAD D» ‘wviisansaepstionseoctininictsincasclpniciinemaansaaies aceite 8, 20

Moore v. Quality Dairy Co., 425 S.W.2d 261 (Mo.

Birr, TOG) canines enna naninecccccconstnsncinensiinnatisianenitaisitini 13

Oceanview Improvement Corp. v. Norfolk & West-

ern Ry. Co., 205 Va. 949, 140 S.E.2d 700 (1965) 23

Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct.

644, 25 L.Ed.2d 174 (1070) 2.22200... 23

Pinkstaff v. Pennsylvania R.R. Co., 20 Ill.2d 193,

170 N.E.2d 139 (1960), cert. denied, 365 U.S.

OU CED stessicnsccncseccstnevnictinsckneviieniisniainberinapannleansdantnnticinen 12

Raymond Motor Transport, Inc. v. Rice, 434 U.S.

429, 98 S.Ct. 787, 54 L.Ed.2d 664 (1978) ............ 23-24

Ricketts v. Kansas City Stockyards Co. of Maine,

484 S.W.2d 216 (Mo. Banc 1972) ....14, 15, 16, 17, 21, 23

Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500,

77 S.Ct. 443, 1 L.Ed.2d 493 (1957) -.............. 15, 20, 21

St. Louis Southwestern Ry. Co. v. Dickerson, ........

UWB. cxcseses , 105 S.Ct. 1347, ........ L.Ed.2d._........

ERO D sis sncincesscnnansnaesensesiinsidasiendsipililapnensiaesiealinpatinasaietiiatiea 9, 20

Searcy v. Neal, 509 S.W.2d 755 (Mo.App. 1974) ....17, 18

Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92

le SE, CED ccctinicdiccincicendisas tuk 18

Southern Pacific Co. v. State of Arizona, 325 U.S.

761, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945) —.......... 23

Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d

BEL CEE niece gieceensiesiicetinstiaiinitaciiniailbasaii die adidas 11

Tiller v. Atlantic Coastline R.R. Co., 318 U.S. 54,

63 S.Ct. 444, 87 L.Ed. 610 (1943) —2 16

Todd v. Watson, 501 S.W.2d 48 (Mo. 1973) .......... 18

Wessinger v. Southern Ry. Co., 470 F.Supp. 930

CER: DEE. vitemniinenicsiniaiictistheesebieaiiadibinineaaks: 19

Western and Southern Life Insurance Co. v. State

Board of Equalization of California, 451 U‘S.

648, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981)

aes 29

Sena T

COTE ER EL nape a

Sk RAI TILT REED oe

VII

Winters v. Terminal R.R. Ass’n of St. Louis, 363

Mo. 606, 252 S.W.2d 380 (1952) ............................ 14

Constitutional Provisions:

United States Constitution, Article I, Section 8

schcamate lett eattibdielibiets sate duaihleiah Nakeneceaadamnioiaaa dase 3, 5, 6, 21, 23, 24

United States Constitution, Amendment XIV

Scan seach Ssctphaterteb eppesbenabeiaiiealahiakiakssiaiweckesecikeoatanaical 3, 5, 6, 19, 24

Statutes:

I an a F easicounennnbiananns 2

ip Te | (| re cundahaedaicaemecumecumiceion 2

A Re I OE ON harris tcccasccicasccecinsensennnsalonse 2, 8,16

Rules and Instructions:

Missouri Approved Instruction 24.01 -.................. passim

Missouri Supreme Court Rule 70 —.....20000200... 6

Missouri Supreme Court Rule 83 — 2.000000... Sa

No. 85-

In the Supreme Court of the United States

October Term, 1985

BURLINGTON NORTHERN RAILROAD COMPANY,

Petitioner,

vs.

HAROLD E. ANDERSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

Petitioner, Burlington Northern Railroad Company,

respectfuily prays that a writ of certiorari issue to review

the judgment and opinion of the Missouri Court of Ap-

peals, Eastern District, entered on September 24, 1985.

OPINION BELOW

The opinion of the Missouri Court of Appeals, Eastern

District, is reported at 700 S.W.2d 469 and is reproduced

in the appendix (‘“App.” Al-A18). Petitioner’s applica-

tion for transfer to the Missouri Supreme Court was

denied December 17, 1985, which order of denial is repro-

duced in the appendix at A27.

JURISDICTIONAL STATEMENT

Burlington Northern Railroad Company (hereafter

referred to as Petitioner), files this Petition for Writ

of Certiorari following an adverse jury verdict in the

Circuit Court of the City of St. Louis, Missouri in an

action brought under the Federal Employers’ Liability

Act, 45 U.S.C. §§51 et seq. (F.E.L.A.). Petitioner ap-

pealed to the Missouri Court of Appeals, Eastern District,

which affirmed the verdict in Anderson v. Burlington

Northern R.R. Co., 700 S.W.2d 469 (Mo.App. 1985). Peti-

tioner properly filed with the Court of Appeals a Motion

for Rehearing or Rehearing En Banc or For Transfer to

the Supreme Court of Missouri (App. Al9). After the

Court of Appeals denied those motions (App. A23), Peti-

tioner filed an application for transfer with the Supreme

Court of Missouri (App. A24) pursuant to Missouri Su-

preme Court Rule 83 (App. A45).

On December 17, 1985 the Missouri Supreme Court

denied Petitioner’s application for transfer (App. A27).

This petition is timely, having been filed within 90 days

thereafter. 28 U.S.C. §2101(c). This Court’s jurisdiction

is invoked pursuant to 28 U.S.C. §1257(3). The questions

presented involve the invalidity and unconstitutionality

of a certain mandatory jury instruction promulgated by

the Missouri Supreme Court (Missouri Approved Instruc-

tion 24.01)' for F.E.L.A. cases, which denies equal pro-

tection to railroads subject to the F.E.L.A., resulting in

an invidious discrimination against such railroads by the

State of Missouri in violation of the Fourteenth Amend-

ment and contrary to decisions of this Court and the

highest courts of several other states, and imposes an

4: M.A.I. is an abbreviation for Missouri Approved Instruc-

tions, the Missouri mandatory pattern jury instructions.

CEST TAS A

—

undue burden on interstate commerce in violation of

Article I, Section 8 of the Constitution.

CONSTITUTIONAL PROVISIONS

Constitution of the United States

Article I, Section 8

Section 8. The Congress shall have Power

bd hd *

To regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes;

Amendment XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

The issues raised herein concern Missouri jury in-

struction practice as required by the Missouri Supreme

Court which discriminates against F.E.L.A. defendants,

places railroads at an unfair disadvantage in defending

F.E.L.A. cases, and is contrary to the decisions of this

Court

Although the Missouri Court of Appeals opinion (App.

A1-A18) sets out in some detail at least part of the evidence

concerning Respondent Anderson’s injury, Petitioner will

briefly summarize the facts. This case was first tried

in June, 1981, resulting in a verdict and judgment against

Petitioner in excess of One Million Dollars. That judgment

was reversed by the Missouri Court of Appeals and the

case was remanded for retrial. Anderson v. Burlington

Northern R.R. Co., 651 S.W.2d 176 (Mo.App. 1983). The

case was retried in October, 1983 on Respondent’s amended

petition alleging five specific claims of negligence.

The evidence on retrial showed that the Respondent,

Mr. Anderson, was 19 years old when he sustained an eye

injury on May 6, 1977. At that time he was a carman

helper at Petitioner’s shops in Springfield, Missouri, work-

ing on the assembly of new coal hopper cars. His duties

required him to use an air-powered reamer to ream bolt

holes to the correct size in the cars being assembled. It

was Respondent’s testimony that he was furnished only

safety glasses or spectacles and not goggles for doing this

work, and that the exhaust from the reamer caused metal

shavings to be blown into his face at times, and at other

times when he was under cars putting bolts into holes

shavings would drop onto his face and get in the vicinity

of his eyes. There was conflicting testimony concerning

whether goggles were made available to him. Respondent

offered evidence of different and other types of eye pro-

tection which he claimed should have been provided him,

of the lack of any strict enforcement of a general eye

safety program, and of the fact that steel shavings from

the reaming accumulated on the floor and on the cars

being assembled. He testified that on May 6, 1977 while

using a reamer, he felt a pain in his eye. When he finally

saw a doctor several days later a steel particle was re-

moved from his eye, but he returned to work. An in-

fection thereafter developed allegedly due to unsanitary

shop conditions, and the eye was ultimately removed. In

all, Respondent’s counsel alleged some 17 different grounds

of negligence in his opening statement to the jury and 11

different allegations of negligence in his final jury argu-

ment.

At the instruction conference in the trial court prior

to jury submission counsel for Petitioner objected to the

giving of Respondent’s tendered Instruction No. 6 based

on M.A.I. 24.01 on the grounds that such instruction de-

nied to Petitioner the equal protection of the laws in vio-

lation of the Fourteenth Amendment to the United States

Constitution, and imposed an undue burden on interstate

commerce contrary to the Commerce Clause, Article I,

Section 8 of the United States Constitution, since the use

of such general negligence instruction was mandated by

the Missouri Supreme Court for use only in F.E.L.A.

cases. In its motion for new trial and at each step in

the appellate process Petitioner preserved its constitu-

tional objections.

Although Petitioner’s evidence was in conflict with

that of Respondent on virtually every point, the trial

court submitted the case to the jury on two general, non-

specific charges of negligence in the form required by

the Missouri Supreme Court in Missouri Approved In-

struction (M.A.I.) 24.01. No instruction by the court

limited the jury’s consideration to even the 17 claims

made by Respondent’s counsel in his opening statement,

much less the five allegations of the Amended Petition.

Instead the jury was directed to find for Respondent if

Petitioner either failed to provide (1) reasonably safe con-

ditions for work, or (2) reasonably safe appliances, and

in one or more of those respects was negligent. Under

Missouri Supreme Court Rule 70 (App. A43-A44) it is

clear that Missouri Approved Instructions are mandatory

and must be used to the exclusion of any others. M.A.I.

24.01 is mandated for use only in F.E.L.A. cases (App.

A33-A34).

In all negligence cases except those brought pursuant

to the F.E.L.A. the Missouri Supreme Court requires the

submission to the jury of specific charges of negligence.

The jury instructions mandated by M.A.I. require the jury

to find the defendant guilty of particular acts or omissions

constituting negligence as a condition to a plaintiff's ver-

dict. The sole exception to this practice is in F.E.L.A.

cases, in which the Missouri Supreme Court mandates the

submission to the jury of only a general negligence charge.

Petitioner objected to the required instruction on the

grounds that it gave the jury a roving commission and con-

stituted a submission of general negligence, thereby dis-

criminating against railroad defendants operating in inter-

state commerce and subject to the F.E.L.A. Petitioner also

objected to the instruction on the grounds that it imposed

an improper burden on interstate commerce in violation

of the Commerce Clause.of the United States Constitution,

Article I, Section 8, and failed to afford interstate rail-

roads the equal protection of the law with other employers

sued for personal injury, in violation of the Fourteenth

Amendment (App. A30). Petitioner’s objections were

overruled by the trial court. Under the general negligence

submission given, the jury found for Respondent and

awarded him $800,000 in damages.

Petitioner filed a timely motion for new trial in which

it renewed its constitutional objections (App. A36-A39),

but the trial court denied that motion (App. A41). Peti-

tioner appealed to the Missouri Court of Appeals, Eastern

District, preserving its constitutional challenges (App.

;

A42). That court affirmed the judgment in Anderson v.

Burlington Northern R.R. Co., 700 S.W.2d 469 (Mo.App.

1985). Petitioner filed its motion for rehearing, or for

rehearing en banc, or for transfer to the Missouri Supreme

Court (App. Al19-A22) which alternative motion was

denied (App. A23). Petitioner next filed an application

for transfer with the Missouri Supreme Court, seeking

review of the Court of Appeals opinion, preserving the

constitutional issues raised herein (App. A24-A26). On

December 17, 1985 the Missouri Supreme Court denied

the application for transfer (App. A27). On December

18, 1985 the Missouri Court of Appeals issued its man-

date affirming the judgment (App. A28).

The use of the general negligence instruction in

F.E.L.A. cases constitutes a denial of equal protection be-

cause the Missouri Supreme Court, without any rational

basis for distinction, requires such submission in F.E.L.A.

cases yet disapproves the use of general negligence instruc-

tions in all other personal injury and master-servant negli-

gence cases. This is contrary to the decisions of this

Court that juries are to be instructed in F.E.L.A. cases

tried in state courts in the same manner as all other negli-

gence cases in those courts. The trial court and the Mis-

souri Court of Appeals, Eastern District, both held against

Petitioner on its constitutional objections on the basis

that the use of M.A.I. 24.01 was mandatory, and the Mis-

souri Supreme Court refused to review that determina-

tion and the propriety of the instruction when it denied

Petitioner’s application for transfer.

REASONS FOR GRANTING THE WRIT

I. The Mandatory Instruction System of the Mis-

souri Supreme Court Requires the Use of a “‘Gen-

eral Negligence’’ Jury Instruction in F.E.L.A.

Cases, Contrary to the Missouri Requirement That

All Other Negligence Cases Be Submitted to the

Jury on Specific Factual Claims, Thus Denying

Railroad Defendants Equal Protection of the Law

in Violation of the Fourteenth Amendment to the

United States Constitution, and Contrary to the

Decisions of This Court That F.E.L.A. Cases Filed

in State Courts Are to Be Treated Procedurally

in the Same Way As Other Negligence Suits, and

Contrary to the Decisions of the Highest Courts

of Other States.

This case presents a question of national importance,

applicable to F.E.L.A. cases brought in the state courts

of all 50 states, and directly affects the constitutional rights

of interstate rail carriers sued in state courts under the

Federal Employers’ Liability Act, 45 U.S.C. §§51 et seq.,

particularly those sued in Missouri.

This Court’s Decisions Require F.E.L.A. Cases

in State Courts to Be Tried Under the Same Local

Instruction Procedure As All Other Cases.

Where F.E.L.A. cases are tried in state courts, the

state is to apply the same procedural rules that it does

in all other negligence cases. In the Second Employers’

Liability Act Cases (Mondou v. New York, New Haven

& Hartford R.R. Co.) 223 US. 1, 32 S.Ct. 169, 178, 56

L.Ed. 327 (1912) this Court specifically held that the Em-

ployers’ Liability Act did not involve “any attempt by

Congress to enlarge or regulate the jurisdiction of state

courts, or to control or affect their modes of procedure

... +” In Chesapeake & Ohio Ry. Co. v. DeAtley, 241

U.S. 310, 36 S.Ct. 564, 566, 60 L.Ed. 1016 (1916), this

Court specifically decided that the manner of instructing

juries was procedural and that in F.E.L.A. cases filed in

state courts, the usual state court procedure with respect

to jury instructions was to be foliowed, saying:

Although the present action was based upon a Fed-

eral statute, it was triable and tried in a state court;

hence local rules of practice and procedure were ap-

plicable.

Most recently, in St. Louis Southwestern Ry. Co. v.

Dickerson, ........ UB. «2... , 105 S.Ct. 1347, 1348, -....... L.Ed.2d

eesti (1985), a case dealing with jury instructions, this

Court said:

[1, 2] As a general matter, FELA cases adjudicated in

state courts are subject to state procedural rules, but

the substantive law governing them is federal.

In Minneapolis & St. Louis R.R. Co. v. Bombolis, 241

U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961 (1916) this Court held

that where a state permitted a non-unanimous verdict to

be returned by a jury in negligence cases, that rule was

likewise applicable to F.E.L.A. cases, against a contention -

that a unanimous verdict should be required since the

F.E.L.A. was a federal act. In Dice v. Akron, Canton &

Youngstown R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed.

398 (1952) the Court indicated that, in accordance with

Bombolis, supra, if a state abolished trial by jury in all

negligence cases then juries would not be required under

the Federal Employers’ Liability Act. In the separate

concurring and dissenting opinion of Mr. Justice Frank-

furter, concurred in by three other justices, is the follow-

ing language which seems particularly applicable here:

ean

It has been settled ever since the Second Employers’

Liability Cases (Mondou v. New York, N.H. & H. R.

Co.) 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, that no

State which gives its courts jurisdiction over common

law actions for negligence may deny access to its

courts for a negligence action founded on the Federal

Employers’ Liability Act. Nor may a State discrim-

inate disadvantageously against actions for negligence

under the Federal Act as compared with local causes

of action in negligence.

* * *

So long as all negligence suits in a State are treated

in the same way, by the same mode of disposing

equitable, non-jury, and common law, jury issues, the

State does not discriminate against Employers’ Liabil-

ity suits nor does it make any inroad upon substance.

= * ”

The State judges and local lawyers who must admin-

ister the Federal Employers’ Liabality Act in State

courts are trained in the ways of local practice; it

multiplies the difficulties and confuses the administra-

tion of justice to require, on purely theoretical grounds,

a hybrid of State and Federal practice in the State

courts as to a single class of cases. Nothing in the |

Employers’ Liability Act or in the judicial enforce-

ment of the Act for over forty years forces such judi-

cial hybridization upon the States.

342 U.S. at 364-368, 72 S.Ct. at 316-317.

The Highest Courts of Other States Require the

Same Instruction Procedure to Be Used in

F.E.L.A. Cases As in Other Cases.

The highest courts of at least three states have held

that the jury must be instructed in the same manner in

F.E.L.A. cases as in all other personal injury negligence

cases tried in the courts of those states, contrary to the

practice in Missouri. In dealing with an instruction issue,

the Supreme Court of Texas held in Thompson v. Robbins,

157 Tex. 463, 304 S.W.2d 111, 116-117 (1957):

We agree with the defendant that the Texas Rules

of Civil Procedure control. The plaintiff invoked the

jurisdiction of the state courts and the case should

be tried as any other suit for damages is tried in the

state courts so far as procedural matters are con-

cerned. Therefore, in view of our policy that all

special issues should be framed in such form as to

not inform the jury of the effect of its answers, we

believe that issue No. 38 should have been framed so

as to inquire of the jury as to what percent the negli-

gence of the plaintiff bore to the entire negligence,

if any, of both the plaintiff and the defendant.

In Chesapeake & Ohio Ry. Co. v. Meadows, 119 Va.

33, 89 S.E. 244 (1916) the Supreme Court of Appeals

of Virginia dealt with a contention that the contributory

negligence - damage mitigation aspect of the F.E.L.A.

required the jury to return a special verdict. That court

held to the contrary, saying:

[3] We do not see that the trial of a case under the

federal Employers’ Liability Act differs at all as to

procedure from any other negligence case. * * *

When Congress gave the state courts co-ordinate juris-

diction in this class of cases with the federal courts,

by necessary implication it adopted the procedure and

practice of the state courts for the trial of such cases.

C. & O. Ry. Co. v. Carnahan, 118 Va. 46, 86 S.E. 863.

« 7 *

If a special verdict were proper in this case, it would

be proper and necessary to have a special verdict in

every negligence case, .. .; yet such a verdict is, as

we have seen, unknown to our practice, and there is |

nothing in the language of the federal statute that |

expressly requires such a proceeding, or from which

such a proceeding is necessarily implied.

89 S.E. 247.

The highest court of North Carolina has held likewise

in Miller v. Norfolk Southern Ry. Co., 240 N.C. 617, 83

S.E.2d 533, 534 (1954):

[1] In this case the rules of liability and recovery

are governed by the provisions of an Act of Congress

known as the Federal Employer’s Liability Act, 45

U.S.C.A. §51 et seq. When a case is brought under

this Act in the State courts, matters of procedure, |

such as the judge’s charge, are governed by rules of |

the North Carolina courts.

Jury instruction practice is also governed by local

rules in F.E.L.A. cases tried in state courts in Washington

and Illinois as demonstrated by the decisions of the highest

courts of those states, although without specific comment

on the issue. Dick v. Great Northern Ry. Co., 12 Wash.2d

364, 121 P.2d 966 (1942); Pinkstaff v. Pennsylvania R.R.

Co., 20 Ill.2d 193, 170 N.E.2d 139 (1960), cert. denied, 365

U.S. 878 (1961).

The Missouri Courts Condemn General Negli-

gence Instructions As Unfair and Discriminatory

and Forbid Their Use in All Other Cases.

The Missouri courts repeatedly have condemned the

submission of negligence issues to juries by so-called

“general negligence” instructions and on the contrary have

required the submission of specific factual issues to the

jury for their determination, saying that general negli-

gence instructions are “unfair” to defendants, Miller v.

United Railways Co. of St. Louis, 155 Mo.App. 528, 134

S.W. 1045 (1911), “prejudicial to defendant’, Killian v.

Albert Wenzlick Real Est. Co., 89 S.W.2d 716 (Mo.App.

1936), “wholly deficient”, Feldewerth v. Wabash R.R. Co.,

181 Mo.App. 630, 164 S.W. 711 (1914) and constitute

“taking an undue advantage of defendant.” Beave v.

St. Louis Transit Co., 212 Mo. 331, 111 S.W. 52 (1908).

Such instructions have been said by the Missouri

courts to fail to give the jury any guidance or direction

as to the grounds on which, under the evidence, a defen-

dant may be found to have been negligent and to leave

the jury free to speculate and conjecture, on their own,

concerning defendant’s negligence. Luckey v. Avon Prod-

ucts, Inc., 589 S.W.2d 364 (Mo.App. 1979); Douglas »v.

Hoeh, 595 S.W.2d 434 (Mo.App. 1980). Such instructions

are condemned as permitting the jury to “invoke their

imaginations or draw upon mere conjecture” as to whether

a defendant might in some manner not shown by the

evidence have avoided injury to plaintiff. Miller v. United

Railways Co., supra, 134 S.W. at 1050. Since adoption

by the Missouri Supreme Court of the Missouri Approved

Instructions, a jury instruction in any other than an

F.E.L.A. case must hypothesize some specific fact consti-

tuting negligence and not require the jury to resort to

substantial conjecture. Dick v. Scott Construction Co.,

539 S.W.2d 688 (Mo.App. 1976). See also Moore v. Qual-

ity Dairy Co., 425 S.W.2d 261 (Mo.App. 1968) and McIntyre

v. Whited, 440 S.W.2d 449 (Mo. 1969).

Prior to the adoption of M.A.I., the jury submission

in F.E.L.A, cases was required to be based on specific negli-

gence, similar to all other cases and consonant with the

principle that the local procedure was to be followed by

state courts in the trial of F.E.L.A. cases. See, for example,

Winters v. Terminal R.R. Ass’n of St. Louis, 363 Mo. 606,

252 S.W.2d 380 (1952), Johnson v. Missouri-Kansas-Texas

R.R. Co., 334 S.W.2d 41 (Mo. 1960) and Beard v. Railway

Express Agency, Inc., 323 S.W.2d 732 (Mo. 1959).

In 1965, however, the Missouri Supreme Court adopted

Missouri Approved Instructions, as promulgated by a com-

mittee appointed by the court for the purpose of drafting

such instructions. Those “pattern” instructions still re-

quire the submission of specific negligence to the jury in

all cases except F.E.L.A. cases, but as demonstrated by

M.A.I. 24.01, mandate the submission of an F.E.L.A. case

on a charge of general negligence.

Missouri Intentionally Discriminates Against

F.E.L.A. Defendants.

The Missouri Supreme Court deliberately intended to

treat railroads unequally in this fashion as demonstrated

by its opinion in Ricketts v. Kansas City Stockyards Co.

of Maine, 484 S.W.2d 216 (Mo. Banc 1972). Plaintiff

there was suing his nonrailroad employer at common

law for an injury sustained at work, allegedly due to the

employer’s negligence. Plaintiff had submitted and the

trial court gave a general negligence instruction precisely

in the language of M.A.I. 24.01. The Missouri Supreme

Court held that M.A.I. 24.01 was to be used solely in

F E.L.A. cases, and that its use constituted prejudicial error

in any other case, saying at 484 S.W.2d 221-222:

This instruction’s wording in what it submitted fol-

lows M.A.I. 24.01 which is designed for submission

of F.E.L.A. cases; and for the reasons hereinafter stated

should not be used in other cases.

We also consider this instruction too broad and in-

definite in submitting only failure to provide reason-

ably safe conditions of work but not submitting any

condition as not being reasonably safe. Our view is

that M.A.I. requires such a submission in all usual

negligence cases as illustrated by its model instruc-

tions...

* * *

Plaintiff’s verdict directing instruction could have

submitted, in accordance with [his specific negligence]

theory, a finding that the place or conditions of work

were unsafe because or on account of having the men

work on a scaffold where they would be standing

below the gutter they were required to remove. De-

fendant’s evidence was that the method used was as

safe or safer than that suggested by plaintiff’s expert

and that was the issue for the jury to decide. The

verdict directing instruction should have required a

finding on that issue. For the reason specified we

must hold Instruction No. 3 to be prejudicially er-

roneous.

The Missouri Supreme Court Decision in Ricketts

Is Legally Wrong.

The court purported to justify the use of the general

negligence instruction M.A.I. 24.01 by this Court’s decision

in Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 77 S.Ct.

443, 1 L.Ed.2d 493 (1957) which held that under the

F.E.L.A. there is liability for negligence of a defendant

“which plays any part ‘even the slightest’” in causing

plaintiff’s injury. Ricketts, supra, 484 S.W.2d at 221.

Despite the Missouri Supreme Court’s misplaced re-

liance on Rogers, that case neither authorizes nor mandates

jury submission on a general negligence charge, but deals

solely with the issue of causation. As clearly stated by

the Court of Appeals for the Third Circuit, “The Rogers

case did not decide how a judge should instruct a jury

in such cases.” Eli v. Reading Co., 424 F.2d 758, 762 (3rd

Cir. 1970).

The Missouri Supreme Court in Ricketts further sought

to justify the general negligence submission in F.E.L.A.

cases by quoting from Boeing Co. v. Shipman, 411 F.2d

365 (5th Cir. 1969), stating that only “slight negligence”

was necessary to support an F.E.L.A. action, and from

Prosser, Law of Torts, §82, that in an F.E.L.A. action,

“the extent of the negligence required, as well as the

quantum of proof necessary to establish it, [have been

reduced] to the ‘vanishing point.” 484 S.W.2d at 221.

The Ricketts opinion somehow inexplicably translated

“slight” negligence into “general” negligence, concepts

which are entirely foreign to one another.

In Boeing, supra, citing no authority other than Profes-

sor Prosser, the court said at 371:

[4] Slight negligence, necessary to support an FELA

action, is defined as “a failure to exercise great care

This holding, of course, is palpably wrong. 45 U.S.C.

£51 uses the term “negiigence”, not “slight negligence.”

This Court has repeatedly held that the standard of care

in an F.E.LA. case is ordinary care. For instance, in

Tiller v. Atlantic Coastline R.R. Co., 318 U.S. 54, 67, 63

S.Ct. 444, 451, 87 L.Ed. 610 (1943) this Court said:

(7, 8] In this situation the employer’s liability is to

be determined under the general rule which defines

negligence as the lack of due care under the circum-

stances; or the failure to do what a reasonable and

prudert man would ordinarily have done under the

circumstances of the situation; or doing what such

a person under the existing circumstances would not

have done.

See also Gallick v, Baltimore & Ohio R.R. Co., 372 U.S. 108,

117-118, 83 S.Ct. 659, 665-666, 9 L.Ed.2d 618 (1963) in which

this Court reiterated that an F.E.L.A. defendant’s duty

was ordinary or reasonable care. Thus both Boeing and

the Missouri Supreme Court decision in Ricketts are di-

rectly contrary to this Court’s decisions, and the declara-

tion of the Missouri Supreme Court, relying solely on

Boeing and Professor Prosser, is contrary to the clear

decisions of this Court. The Missouri Supreme Court’s

misplaced reliance on those authorities thus is insufficient

to justify the clearly disparate treatment accorded F.E.L.A.

defendants in the Missouri instruction procedure and af-

fords no basis for classifying F.E.L.A. defendants differ-

ently from other corporate employers sued by their em-

ployees for negligently inflicted personal injury.

The Missouri Court of Appeals perpetuated this dis-

criminatory and unequal treatment of employer defendants

in Searcy v. Neal, 509 S.W.2d 755 (Mo.App. 1974). There

again an employee sued his employer for a negligently in-

flicted injury. The employee submitted his case to the

jury by an instruction obviously patterned on M.AI. 24.01.

Since defendant was not a railroad subject to the F.E.L.A.

the Missouri Court of Appeals held the jury submission

and use of M.A.I. 24.01 erroneous and reversed, citing

Ricketts as its authority. The court in Searcy said:

Instruction No, 2... does not require a finding of a

particular unsafe condition which could have been the

proximate cause of the injury, and therefore was prej-

udicially erroneous. * * * The fallability of a negligence

verdict-director which does not submit the finding of

a particular dangerous condition as the proximate

cause of the injury is given poignancy by cases, such

as this, where the proof asserted by the plaintiff is

of more than one unsafe condition.

509 S.W.2d at 762. See also Todd v. Watson, 501 S.W.2d

48 (Mo. 1973) at page 49, n. 1.

There Is No Rational or Legitimate Basis for Mis-

souri to Discriminate Against F.E.L.A. Defen-

dants.

There is no rational basis for, and certainly no state

interest in, treating F.E.L.A. cases differently from all

other negligence cases which Missouri requires be sub-

mitted to juries on instructions specifying the negligence

charged. It has been made clear by this Court that the

action of a state court denying equal protection to one

class of parties is action of the state within the meaning

of the Fourteenth Amendment. Shelley v. Kraemer, 334

US. 1, 15, 68 S.Ct. 836, 843, 92 L.Ed. 1161 (1948); Cocper

v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).

This Court held over 50 years ago that a plaintiff suing

under the F.E.L.A. could not be discriminated against by

a state court simply because his rights are to be deter-

mined under a federal statute, and Petitioner respectfully

suggests that neither may an F.E.L.A. defendant be dis-

criminated against by a state court simply because it is

sued under the same federal statute. As this Court has

said, “A state may not discriminate against rights arising

under federal laws.” McKnett v. St. Louis & San Fran-

cisco Ry. Co., 292 U.S. 230, 234, 54 S.Ct. 690, 692, 78 L.Ed.

1227 (1934).

Even railroads have been held by this Court to be

entitled to their constitutional protections. Although the

context was different, what this Court said in Gulf, C. &

S.F. Ry. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 256, 41

L.Ed. 666 (1897) is equally appropriate here:

In the suits, therefore, to which they are parties, [rail-

roads] are discriminated against, and are not treated

as others. They do not stand equal before the law.

They do not receive its equal protection.

It is well settled that corporations are persons within

the provisions of the fourteenth amendment of the

constitution of the United States.... A state has

no more power to deny to corporations the equal

protection of the law than it has to individual citizens.

In yet another context it has been held that a jury

instruction and statute authorizing it which limited the

right of a railroad to rely on contributory negligence con-

stituted a denial of equal protection in violation of the

Fourteenth Amendment. Wessinger v. Southern Ry. Co.,

470 F.Supp. 930 (D.S.C. 1979); see also Georgia Southern

& Florida Ry. v. Seven-Up Bottling Co., 175 So.2d 39 (Fla.

1965) and Atlantic Coastline R.R. Co. v. Ivey, 148 Fla.

680, 5 So.2d 244 (Banc 1941).

The State of Missouri, in subjecting F.E.L.A. defen-

dants unlike any other defendants to what the Missouri

Supreme and appellate courts have characterized as “un-

fair”, “prejudicial” and “wholly deficient” submissions of

general negligence, clearly denies equal protection in vio-

lation of the Fourteenth Amendment.

. . « the policies of the Equal Protection Clause...

were intended to secure “the full and equal benefit

of all laws and proceedings for the security of per-

sons and property” and to subject all persons “to

like punishment, pains, penalties, taxes, licenses, and

exactiuiis of every kind, and to no other.”

~ * >

“ . . When the law lays an unequal hand on those

who have committed intrinsically the same quality

of offense ... it has made as an invidious a discrimi-

nation as if it had selected a particular race or nation-

ality for oppressive treatment.”

McLaughlin v. State of Florida, 379 U.S. 184, 193-194, 85

S.Ct. 283, 289-290, 13 L.Ed.2d 222 (1964).

A state’s disparate and unequal treatment of parties

similarly situated - here personal injury negligence defen-

dants sued in state courts - can only survive an equal pro-

tection challenge if a rational or legitimate basis for dif-

ferent treatment or classification can be shown, and the

classification is rationally related to the achievement of

a legitimate state purpose. Western and Southern Life

Ins. Co. v. State Board of Equalization of California, 451

U.S. 648, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981). In the

situation in question, however, this Court has commanded

that F.E.L.A. defendants be accorded the same procedures

as all other defendants sued in state courts. Mondou,

supra; DeAtley, supra; Dice, supra; Dickerson, supra.

Except for its erroneous interpretation of this Court’s de-

cision in Rogers and its misplaced reliance on the incor-

rect statement in the Fifth Circuit Boeing decision, the

Missouri Supreme Court has never attempted to justify

its requirement that F.E.L.A. defendants be subjected to

the use of the admittedly unfair general negligence charge.

It has made no attempt to justify its departure from this

Court’s decisions in the Mondou, DeAtley and Dice cases.

It certainly has not stated any rational basis for, nor state

interest served by, its discrimination against and unequal

treatment of F.E.L.A. defendants, contrary to the clear

mandates of this Court. In matters of substantive law the

rights of the parties are governed by the federal Act itself

and the decisions of this Court. Rogers, supra. As to mat-

ters of procedure this Court’s decisions require that the

state courts adhere to the same procedures which they

follow in all similar cases. Thus there is no rational or

legitimate basis for, or legitimate state purpose served

by, Missouri’s unequal treatment and classification of

F.E.L.A. defendants.

II. Missouri’s Jury Instruction Requirement for

F.E.L.A. Cases Places an Undue Burden on In-

terstate Commerce in Violation of Article I, Sec-

tion 8 of the United States Constitution.

In view of the enormous verdicts so frequently ren-

dered in F.E.L.A. cases, Missouri’s action in treating

F.E.L.A. defendants differently from other defendants in

similar injury cases results in the imposition of an undue

and unwarranted burden on interstate commerce in vio-

lation of Article I, Section 8 of the United States Consti-

tution. Missouri does not have, nor have its courts at-

tempted to articulate, any local interest or objective to

be achieved by the use in F.E.L.A. cases of what the Mis-

souri courts have long called an “unfair” manner of in-

structing juries.

The Federal Employers’ Liability Act by its terms is

applicable only to railroads engaged in or whose activities

substantially affect interstate commerce. M.A.I. 24.01 is

applicable only in F.E.L.A. cases. Ricketts, supra. Thus

only railroads engaged in or whose activities affect in-

terstate commerce are burdened by the “unfair” and

“prejudicial” practice of submitting cases to juries with-

out the slightest specification of negligence, contrary to

the state’s practice with regard to all other negligence

defendants. As this Court recently pointed out in Arkansas

Electric Cooperative Corp. v. Arkansas Public Commission,

461 U.S. 375, 103 S.Ct. 1905, 1915, 76 L.Ed.2d 1 (1983):

[7, 8] Even in the absence of congressional legislation,

“the Commerce Clause contains an implied limitation

on the power of the States to interfere with or impose

burdens on interstate commerce.” (Citing cases) .. -

It is difficult to square the mechanical line drawn .. .

and based on a supposedly precise division between

“direct” and “indirect” effects on interstate commerce,

with the general trend in our modern Commerce

Clause jurisprudence to look in every case to the

“nature of the state regulation involved, the objective

of the state, and the effect of the regulation upon the

national interest in the commerce.”

The sizable awards so routinely upheld in F.E.LA.

cases obviously constitute a burden on interstate com-

merce, since the resulting judgments are imposed directly

upon interstate rail carriers and the cost thereof must be

borne by the shipping public. This Court in Davis v.

Farmers’ Co-op. Equity Co., 262 U.S. 312, 43 S.Ct. 556, 67

L.Ed. 996 (1923) took notice that claims against inter-

state railroads for personal injuries are numerous, the

amounts demanded are large and result directly and in-

directly in heavy expense, and held a state jurisdiction

statute unconstitutional as imposing an undue burden on

interstate commerce.

Far less costly than such damage awards would be

the expense of requiring the operation of shorter trains,

yet this Court has specifically held that a state statute

purporting to limit the length of trains constitutes an

undue burden on interstate commerce contrary to Article

I, Section 8 of the Constitution, both because of the addi-

tional expense and the inefficiency of operation, and that

such enactments are void. Southern Pacific Co. v. State

of Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915

(1945). A similar result has been reached where cities

have attempted by ordinance to limit train length. Kahn,

et al. v. Southern Ry. Co., 202 F.2d 875 (4th Cir. 1953);

Oceanview Improvement Corp. v. Norfolk & Western Ry.

Co., 205 Va. 949, 140 S.E.2d 700 (1965).

If the imposition of a $250 tax unduly burdens inter-

state commerce as this Court held in Best & Co. v. Mazx-

well, 311 U.S. 454, 61 S.Ct. 334, 85 L.Ed. 275 (1940) it

is abundantly clear that the $800,000 verdict and judgment

sustained here constitute an undue burden on interstate

commerce. Purely local, non-railroad defendants sued in

Missouri are not subject to the use of a general negligence

instruction such as M.A.J. 24.01 as clearly demonstrated

by the Missouri Supreme Court’s decision in Ricketts,

supra. Thus the use of this instruction constitutes at

least as clear a discrimination against employers oper-

ating railroads in interstate commerce as did the mer-

charts’ tax imposed only on nonresident merchants in

Best & Co., supra.

In Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct.

844, 25 L.Ed.2d 174 (1970) this Court found a state admin-

istrative order which would have imposed a $200,000 ex-

pense on a cantaloupe grower an impermissible burden

on interstate commerce, even though it did not discrim-

inate in favor of local companies, there being no suffi-

ciently legitimate local purpose to be served. See also

Raymond Motor Transport, Inc. v. Rice, 434 U.S. 429,

98 S.Ct. 787, 54 L.Ed.2d 664 (1978) and Kassel v. Consol-

idated Freightways Corp. of Delaware, 450 U.S. 662, 101

S.Ct. 1309, 67 L.Ed.2d 580 (1981) in which substantial

expense, together with other restrictions imposed by

states, was held to burden interstate commerce uncon-

stitutionally.

Petitioner submits that the Missouri Supreme Court

in its jury instruction practice denies to interstate rail-

roads, including Petitioner, the equal protection of the law

in violation of the Fourteenth Amendment of the United

States Constitution, and improperly imposes an undue

burden on interstate commerce in violation of the Com-

merce Clause, Article I, Section 8 of the Constitution, and

that such practice is contrary to the clear pronouncements

of this Court.

CONCLUSION

For all of the above reasons, Petitioner respectfully

urges this Court to grant this petition for the issuance of

this Court’s writ of certiorari.

Respectfully submitted,

THOMAS E. Deacy, JR.

EDWARD W. MULLEN

DEREK E. Woop

Deacy & DEacy

1000 Bryant Building

1102 Grand Avenue

Kansas City, Missouri 64106

(816) 421-4000

Attorneys for Petitioner

APPENDIX

INDEX TO APPENDIX

Opinion of the Missouri Court of Appeals, Eastern

District in Harold E. Anderson v. Burlington North-

ern Railroad Co. (Published at 700 S.W.2d 469) .... Al

Petitioner’s motion for rehearing, or rehearing en

banc, or for transfer to the Supreme Court of

I SE clas essssteetilcsciiatbihalbinanaipnidianinedonidaasidiin Alg

Order denying motion for rehearing/transfer (Mo.

Ns a Ns I ID. cnstssntteeicmetscissicsisniosiansienernsnanicnaiion A23

Petitioner’s application for transfer to the Supreme

Court of Missouri (excerpt) ...................-c-ccccecscecccencceneee A24

Order of the Supreme Court of Missouri denying Peti-

tioner’s application for transfer (Dec. 17, 1985) ........ A27

Mandate of the Missouri Court of Appeals, Eastern

District (issued on Dec. 18, 1985 pursuant to the

Order of the Supreme Court of Missouri denying

Petitioner’s application to transfer) ................22.......... A28

Instruction Conference held before The Honorable

Daniel T. Tillman, Judge, in the Circuit Court for

the City of St. Louis prior to submission of this

case to the jury (Tr. on App., pp. 1438-1440) —.......... A30

I, NG A hist ncressicasilbscivinrpociinncibontiaesedetste eel A32

Missouri Approved Instruction 24.01 with Committee’s

IIIT shsshsrinieiiseeeilsicnecepebininiseeseie tesla’ A33

Judgment in the Circuit Court of the City of St. Louis

I ac eee dcalinaedeecbatisaanicnlnaiiaaninisaiinds A35

Petitioner’s alternative motions for judgment notwith-

standing verdict and for new trial (excerpts) .......... A36

Order of Trial Court denying Petitioner’s motion for

judgment notwithstanding verdict or for new trial

SI NE IIIT idee cree enatlisiniadehi heii sdecsweinaisasbipsbanaied A4l

Pertinent point relied upon by Petitioner before Mis-

souri Court of Appeals, Eastern District .................... A42

Missouri Supreme Court Rule 70 ...............:-cecccceeeseseee: A43

Missouri Supreme Court Rule 83.03 .................-.::csee0+0 A45

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

DIVISION TWO

No. 48301

HAROLD E. ANDERSON,

Plaintiff-Respondent,

VS.

BURLINGTON NORTHERN RAILROAD COMPANY,

Defendant-Appellant.

Appeal from the Circuit Court of the City of St. Louis

Hon. Daniel T. Tillman, Judge

OPINION FILED: September 24, 1985

Burlington Northern Railroad Company (railroad)

appeals from a judgment in favor of Harold E. Anderson

pursuant to a jury verdict of $800,000.00 in a personal in-

jury action filed against the railroad pursuant to § 45 U.S.C.

§§ 51 et seq., the Federal Employers’ Liability Act. An-

derson sought damages for injuries incurred when a steel

shaving got into his eye as he was reaming bolt holes on

a hopper car assembly line. We affirm.

This is the second appeal following retrial ordered by

us in Anderson v. Burlington Northern Railroad, 651

S.W.2d 176 (Mo.App. 1983) from which we borrow freely

without quotation marks the following recitation of facts.

Anderson was an employee of the railroad. His duties re-

quired him to ream bolt holes in the metal flooring of

hopper cars. He used an air-powered reamer, the exhaust

from which caused the metal shavings to be biown into

his face at times. He wore safety glasses or spectacles but

they did not prevent particles of metal from being blown

into his eyes. The evidence was conflicting regarding the

availability to Anderson, and the use by other employees,

of various types of safety goggles. On May 6, 1977, while

reaming a hole with the exhaust blowing in his face, An-

derson felt a pain in his left eye. After finishing the last

hole, he went to his foreman, obtained eye wash, and

washed his eye. His eye continued to hurt over the week-

end. Despite the continued eye irritation, he worked on

Monday. On Tuesday when he returned to work, he was

sent to a doctor who removed a piece of metal from his

eye and attempted to clean the eye by drilling into it.

While Anderson continued to work, he also visited the

doctor because of pain. About two weeks later, on May

22, Anderson was admitted to the hospital. Surgical

efforts to save his eye were unsuccessful; it was eventually

removed and replaced with a prosthesis, a plastic eyeball.

The railroad raises nine points on appeal alleging that

the trial court erred in the following: (1) refusing to

grant a motion for directed verdict or judgment notwith-

standing the verdict because Anderson failed to prove that

the railroad’s negligence caused his injuries; (2) denying

a mistrial where the jury surmised that the failure to

grant Anderson’s request to excuse certain jurors was at

the railroad’s insistence; (3) failing to discharge the jury

or declare a mistrial following a witness’ testimony of

the railroad’s racial bias against the witness, thereby

prejudicing the jury against the railroad; (4) admitting

Anderson’s testimony that the railroad forced his return to

work the day after his medical treatment and continued

to supply inadequate or ineffective safety goggles to him;

(5) admitting certain incompetent medical testimony; (6)

admitting testimony by an economist concerning Ander-

son’s past and future loss of wages; (7) denying the mo-

tion for new trial or remittitur for an excessive jury ver-

dict; (8) giving a negligence instruction based on M.ALI.

24.01; and (9) refusing to give the railroad’s proffered

comparative negligence instruction.

We shall] set out additional facts only as needed. Rail-

road’s first point contends Anderson failed to make a

submissible case. The standard of review to be used in

determining whether sufficient evidence has been presented

in order to make a submissible case is well established.

We must view the evidence in the light most favorable to

the plaintiff and disregard defendant’s contrary evidence.

White v. St. Louis-San Francisco Ry., 602 S.W.2d 748, 751

(Mo.App. 1980).

There is no question that Anderson sustained an injury

as a result of a piece of steel being embedded in the cornea,

near the center of his left eye. Railroad argues that, al-

though Anderson established that the safety glasses issued

him by the railroad had gaps which would allow debris

to get behind the glasses, no evidence established that

the steel particle got in Anderson’s eye while he was

actually working. Railroad presents other possibilities

explaining how the steel particle fell in Anderson’s eye.

Noting that even if a man had on goggles or a face shield

recommended by experts on eye protection, if he took them

off and wiped his forehead because he was hot, a piece of

metal could be shaken from his eyebrows, forehead, or

gloves; be rubbed into the eye; and be forced in by the

eyelid.

Testimony by Anderson established that the safety

glasses issued to him and worn by him at the time of his

injury were essentially spectacles, horn-rimmed glasses

with perforated plastic side shields. He testified metal

shavings, blown by the exhaust from the reamer, would

get in his clothes, hair, face, eyebrows, in the vicinity of

the eyes, and in the eyes of other workers on numerous

occasions through the gaps at the top and bottom of the

eyeglass frame, at the brow, around the cheeks and adja-

cent to the nose. Several other men, employed similarly

to Anderson, had complained about getting shavings in

their eyes while wearing the safety glasses. Anderson

also testified that while working he felt a pain in his eye.

Ample evidence was before the jury on this matter for

it to conclude that the railroad’s negligence in furnishing

inadequate eye protection caused Anderson’s injuries, de-

spite the railroad’s alternative explanations for causation

on how the injury occurred. Point denied.

The railroad’s second point alleges error in the denial

of its motion to discharge the jury. During the voir dire

of the jury panel, one of the male jurors, Mr. Webbe,

informed the court he was allowed only one week’s paid

absence from his employment for jury duty. Despite

his willingness to contribute the second week as a civic

obligation, he was concerned over the possibility of the

trial going into a third week. Out of the hearing of the

jury the court advised the attorneys that if they believed

Webbe’s ability to concentrate on the case could be af-

fected, the court would release him if both agreed. Ander-

son’s counsel approved. The railroad’s counsel, mindful

that few men were on the panel and, more importantly,

that Webbe used both air electric drills and reamers re-

quiring him to wear eye protection in his employment,

refused his consent to excuse Webbe.

The proceedings returned to the hearing of the jury

and Anderson’s counsel inquired of Webbe whether there

was “a problem inasfar as you are concerned.” Webbe

again repeated that he would get paid only for five days.

Anderson’s counsel thereupon moved “that the juror be

dismissed, we have extra jurors down here,” notwith-

standing the preceding bench conference where the rail-

road’s counsel had refused his consent to excuse Webbe.

Immediately thereafter, the railroad’s counsel approached

the bench and, out of the hearing of the jury, moved to

discharge the jury panel stating Anderson’s attorney was

guilty of a deliberate attempt to prejudice the jury against

the railroad. The motion was denied. The railroad argues

the actions of Anderson’s counsel curried favor with the

jury, especially with Webbe, by revealing that Webbe

was retained at the railroad’s insistence, despite Anderson's

willingness to excuse him.

Neither Webbe nor the panel was ever advised in

any manner that the railroad objected to or opposed

Webbe’s being excused. Earlier during the course of the

voir dire examination, the trial court had determined not

to excuse another venireman because of job problems.

In the eyes of the jury, the trial court, not the attorneys,

made the final determination not to excuse Webbe. The

court exercised its discretion in the manner requested by

the railroad by denying Anderson’s motion to excuse

Webbe. The railroad’s determined efforts to have Webbe

retained on the panel were successful. Regardless of rail-

road’s characterization of the remark made by Anderson’s

counsel, the record fails to support that either Webbe or

the entire jury panel perceived that it was at the rail-

road’s insistence that Webbe was not excused, thereby

engendering their prejudice against the railroad. The trial

court is vested with broad discretion in the control of

counsel’s conduct during voir dire and his ruling thereon

will not be disturbed unless the facts indicate a manifest

abuse of discretion, Missey v. Kwan, 595 S.W.2d 460, 462

[2] (Mo. App. 1980), because the trial court is in a better

position to gauge the effect on the jury panel of the matter

claimed to be prejudicial, see Smith v. Aldridge, 356

S.W.2d 532, 536 (Mo. App. 1962). The trial did not

exceed two weeks, so Webbe incurrec. no undue hardship

by his jury service; therefore, we find no prejudice to the

railroad and no abuse of discretion by the trial court.

The incident certainly does not warrant reversal. Everett

v. Bishop, 680 S.W.2d 779, 781 (Mo. App. 1984).

In the same point railroad also complains of the actions

of Anderson’s attorney concerning Mr. Winkelman, a juror,

who had advised the court near the end of the trial he

would lose his job if the trial went into a third week.

On the final Thursday of the second week, the court re-

quested the jury to determine whether it wished to com-

plete the case on Saturday or Monday. The jury voted

for Monday whereupon the court advised them, since

Winkelman “would lose his job if he had to come back

Monday,” their selection of Monday would require that the

alternate juror be substituted. A recount produced the

same result. The court then requested to know whether

the substitution for Winkelman could be made. Railroad’s

attorney asked to approach the bench. Out of the jury’s

hearing, railroad’s attorney stated he did not wish to make

the decision to excuse Winkelman. At his request, the

decision to excuse Winkelman was deferred until the fol-

lowing morning, on Friday, so that Winkelman’s employer

could be contacted. Proceedings resumed before the jury.

After they were eventually excused on Thursday for the

evening, the court learned Winkelman would be available

Monday if he worked Saturday. The railroad claims the

occurrence prejudiced it by placing railroad in the position

of being the “villain” by requiring Winkelman to stay

on Monday and lose his job merely because railroad de-

sired to keep Winkelman, one of the only two males on

the jury panel. The record reveals no objection during

this scenario was made by railroad. We review the in-

cident for “plain error.” Rule 84.13(c).

The requisite prelude to plain error review occurs

where the circumstances are characterized as having en-

gendered hatred, passion or prejudice resulting in manifest

injustice or a miscarriage of justice. Executive Jet Man-

agement & Pilot Service, Inc. v. Scott, 629 S.W.2d 598,

607[7] (Mo. App. 1981). Nothing in the record reflects

that the jury knew the railroad was willing to retain

Winkelman on the panel at the expense of his job, because

the proceedings were conducted outside the hearing of

the jury. The jury was not informed that the railroad

might not consent to Winkelman’s being excused. The

decision pertaining to Winkelman was expressly post-

poned to the following morning where the court learned

the problem was resolved and that Winkelman could finish

his jury service without jeopardizing his job. No decision

was made to keep Winkelman as a juror and have him lose

his job. No showing exists of any prejudice to the railroad

tantamount to manifest injustice or a miscarriage of justice.

The railroad’s second point is denied.

The railroad’s third point alleges error for the failure

of the trial court to discharge the jury and declare a

mistrial following a witness’s testimony implying the rail-

road’s racial bias against him, thereby prejudicing the

railroad because seven of the twelve jurors were black.

Mr. Davenport, a black man and one of Anderson’s co-

workers, was called by Anderson as a witness and testified

generally to the working conditions at the time of Ander-

son’s injury. During direct, cross and redirect examina-

tion, no mention or reference to race was elicited. On

re-cross examination, the railroad’s counsel attempted to

impeach Davenport’s testimony that he did not “have time

to see what everybody else was doing.” The following

colloquy occurred:

[By Mr. Mullen] All right. I think that’s all.

You say you didn’t have time to do anything

but work eight solid hours a day on the hopper

line reaming these holes. Mr. Davenport, did you

ever get in trouble for coming in late, leaving

early for lunch?

MR. FRIEDMAN: Pardon me, Your Honor. I don’t

think that has any bearing.

THE COURT: Sustained. The jury is instructed to

disregard that.

(By Mr. Mullen): Well, may I ask, Mr. Daven-

port, did you from time to time leave the hopper

line to go over and engage in social telephone calls

in the office?

Telephone calls in the office?

Yeah, right.

MR. FRIEDMAN: Again, your Honor.

THE COURT: Overruled, cross examination. Go

> O Pp &

ahead.

(By Mr. Mullen): And get called down for it?

Called down for what, telephone calls?

Yeah, right, right.

Mr. Mullen, they tried to get on me for anything.

I was the only black person in that shop just

about. You know, anything they could catch me

trying to do they would try to get rid of me. Back

in ’77 they didn’t want me to work there in the

first place, that’s why they gave me a little peon

job because they thought I would quit but I didn’t.

The railroad made no objection or motion to strike

Davenport’s answers; instead, counsel continued his line

of questioning whether disparate racial treatment had oc-

curred. Again, when the witness stated that he “didn’t

quit. I got laid off, you know,” the railroad’s counsel in-

quired whether or not it was true that everyone else

with his seniority or less had likewise been laid off.

Davenport responded:

[Y]ou don’t see my point. I’m saying one toad out of a

hundred and twenty you’re definitely going to see

me. I don’t care what I do you’re going to see me

mess up. I don’t care what it is because I stick out

like a fly in a churn of buttermilk, they were on me

all of the time.

Following additional questioning during the re-cross and

further redirect examination by Anderson’s attorney,

Davenport was finally excused. The railroad’s counsel

then complained Davenport’s remarks were gratuitous

and non-responsive, and requested a mistrial which the

trial court denied. The trial court did instruct the jury

to disregard the testimony pertaining to race.

When a witness unexpectedly volunteers an inadmis-

sible statement, the action called for rests largely within

the discretion of the trial court who must evaluate the

situation and ascertain if some remedy short of a mis-

trial will cure the error, and appellate review of the trial

court’s decision is to verify that the trial court has not

abused its discretion. 629 S.W.2d at 611[37]. A declara-

tion of a mistrial is the most drastic remedy for trial error

on |

Al0

and should be granted only in those cases where the error

is sO prejudicial that its effect can be excised in no other

way. Id. [38]. The trial court was in a superior position

to assess whether his admonition to the jury was sufficient

to lessen the sting of the witness’s comments invited by

the railroad’s line of inquiry. We find no abuse of the

trial court’s discretion in denying the railroad’s motion for

mistrial. Point denied.

The railroad’s fourth point claims error in the ad-

mission of Anderson’s testimony that he was “forced” to

return to work the day following his initial medical treat-

ment and of his counsel’s comments in his opening state-

ment to the effect that the railroad continued to furnish

Anderson with ineffective eye protection upon his return

despite his surgery. Railroad states the foregoing evi-

dence was irrelevant and prejudiced the jury against the

railroad. The gist of the railroad’s argument is that An-

derson did not present sufficient evidence to establish a

causal connection between his eye infection and his alleged

“forced” return to work. The railroad also argues that

the evidence was improper because it permitted the jury

to infer Anderson’s return to work caused or contributed

to the infection in his eye causing its eventual removal.

At trial the railroad had requested by motion in limine

to exclude any testimony, evidence, or statement that the

railroad in any manner forced Anderson to return to

work following his initial medical treatment. The trial

court denied the motion. When Anderson began to testify

at trial about the events prompting his return to work

following his initial medical treatment, the railroad ob-

jected on the ground that Anderson’s testimony was im-

proper and outside the scope of the pleadings. The trial

court sustained the objection prompting Anderson’s at-

All

torney to suggest the court review the pleadings. In the

railroad’s answer to Anderson’s first amended petition, the

railroad alleged as an affirmative defense that Anderson

voluntarily continued his work duties and subjected him-

self to an increased likelihood of infection and injury

without being required by the railroad to do so and without

making known to the railroad the extent of his symptoms

or condition of his eye. Subsequently, the judge overruled

the railroad’s further objection on relevancy that the

evidence failed to indicate a connection between Ander-

son’s return to work and the subsequent eye infection.

The evidence admitted is relevant and probative on the

issues whether Anderson’s return to work was a result

of the railroad’s negligence or Anderson’s actions as al-

leged. No effort was made by the railroad to limit by

instruction the purpose for which the jury considered this

evidence. We deny railroad’s fourth point.

The railroad’s fifth point contends certain medical

evidence was improperly admitted. Without addressing

whether such evidence was improperly admitted, our re-

view of the trial record reveals that the deposition of an-

other medical expert containing substantially the same

evidence complained of here had previously been read to

the jury with no objection by the railroad. One cannot

be heard to complain of the admission of testimony over

his objection, where evidence of the same tenor has been

admitted without his objection. Laughlin v. Kansas City

Southern Ry., 275 Mo. 459, 205 S.W. 3, 8[13] (1918);

Mathews v. Chrysler Realty Corp., 627 S.W.2d 314, 319[7]

(Mo. App. 1982). We need not further address the rail-

road’s complaint. Point denied.

The railroad’s sixth point alleges error in the admission

of testimony and exhibits concerning Anderson’s past and

Al2

future wage losses and the trial court’s refusal to give with-

drawal instructions because the testimony constituted

speculation and was not supported by competent evidence.

The expert testified extensively from the exhibits but the

record on appeal does not contain those exhibits whose

accuracy the railroad disputes. Railroad argues that the

expert witness’s calculations were based on speculative as-

sumptions, and challenges the expert’s conclusion that

spray painters’ wages and carmen’s wages would both in-

crease in the future. Railroad states that the expert gave

no basis for his conclusion about spray painters’ wages

and that his explanation for carmen’s future wage increases

was incomprehensible. Railroad concludes that the jury

was induced to return an excessive verdict by the specula-

tive testimony concerning damages. We do not agree.

The ultimate test for damages is whether the award

will fairly and reasonably compensate the plaintiff for

his injuries. Sampson v. Missouri Pacific R.R., 560 S.W.

2d 573, 588[25] (Mo. banc 1978). Anderson’s expert wit-

ness, an economist and economics professor, testified con-

cerning Anderson’s past and future wage loss. The expert

calculated $136,652.00 to be Anderson’s past wage loss

from the time of his injury to the time of trial, a period

of 6-1/2 years, based on an hourly rate in a 40 hour week

paid to a journeyman-carman. He reduced this figure by

twenty percent, the difference between the wages paid a

journeyman-carman and an apprentice helper such as An-

derson, and then he subtracted all actual earnings of An-

derson from May, 1977 to October 31, 1983. After mak-

ing the two subtractions, he calculated Anderson’s past

wage loss to approximately $80,843.00. No addition was

made for salary increases likely to accrue to Anderson

as he approached journeyman status during the completion

of his apprenticeship during this period. Since Anderson

Al3

had also worked as a custom spray painter for automobiles

and tractor trailers, the expert witness offset Anderson’s

alternative income potential as a custom spray painter

against any deduction which might otherwise be required

for layoffs or furlough periods on the railroad when An-

derson would not have earned wages. The expert’s per-

sonal knowledge that spray painters in Missouri earned

$20.00 an hour, plus fringe benefits was corroborated by

another witness, a former seller of trucks and trailers in

Springfield, Missouri, for whom Anderson had done custom

spray painting prior to his accident.

The extent of future harm to the earning capacity of

the injured person is measured by the difference as of

the time of trial between the value of plaintiff’s services

as they would have been in view of the injury and as

they would have been had there been no injury. Id. at

589[27]. A figure for loss of wages is not to be permitted

when formed from speculation and conjecture, but only

when established with reasonable certainty upon which

substantial evidence must be introduced. Id. [28].

The expert’s calculation of future wage loss used two

figures, $26,894 per year, based on Anderson’s rate of pay as

a carman (or a spray painter earning at least that much),

and $6,968 annually, based on the minimum wage at the

time of trial for entry level work based on testimony by

a rehabilitative counselor that Anderson’s employment

was limited to entry level positions not intellectually de-

manding. The $19,926 difference between these two annual

wages represented Anderson’s annual wage loss basis for

the future. The expert witness computed the present

value of Anderson’s future earnings as a carman at three

different retirement ages, figuring that Anderson at age 25

would likely retire at the age of 62, 67, or 70 years. To

compute the present value of Anderson’s future loss of

Al4

income, the expert reviewed carmen wages from 1962

to 1983 and arrived at an annual wage percentage increase

and then, based upon the relationship of past wage in-

creases to interest rates on tax free high grade bonds,

taking inflation into account, demonstrated that the rate

of increase of carmen’s wages on the average for the past

twenty years was greater than the increase in interest rates

by about 2%. He adusted the 2% differential downward

to 1-1/2% due to current rising interest rates. No specific

projections of exact interest rates, wage increases, or in-

flation were made. The witness testified he could not

predict the future rate of inflation and interest, but in-

dicated the relationship between interest rates, wage in-

creases, and inflation has been historically constant.

After computing the present value of future carmen

earnings for the three retirement ages of 62, 67, and 70,

the expert computed the present value of future minimum

wage earnings at the three retirement ages. He subtracted

the lesser, minimum wage figures from the future carmen

earnings to derive the present value of the future wage

loss at the three retirement ages. To each of these, he

added the approximate $80,843.00 past wage loss to derive

Anderson’s total wage loss, both past and future (presently

valued), resulting in a total wage loss of $876,562 at age

62; $997,285 at age 67; and $1,071,079 at age 70. Fringe

benefits were not included in the calculations to offset

the tax consequences.

Inevitably there is a degree of speculation to the deter-

mination of a fairly approximated present-value award

compensating plaintiff for what he would have earned

but for his injury, but we do not find such speculation,

when based upon the use of facts in reasonable calcula-

tions, to be so purely conjectural as to improperly in-

Al5

fluence the jury’s verdict as to damages. Id. The ex-

pert’s calculation of damages based on a correlation be-

tween interest rates and earnings is a projection; never-

theless, it is a prediction based upon reasonable certainty.

The railroad’s excerpts from cross-examination reflect

its intent to undermine the methodology of the economist.

However, the relative weakness or strength of the factual

underpinning of the expert’s opinion goes to the weight

and credibility, rather than admissibility. Hall v. W.L.

Brady Investments, Inc., 684 S.W.2d 379, 388[8] (Mo. App.

1984). The trial court did not err in admitting the ex-

pert’s testimony or in refusing to give railroad’s proffered

instructions withdrawing evidence of Anderson’s past and

future wage losses.

The railroad’s seventh point claims error in the denial

of its motion for new trial for the failure to grant a

remittitur, contending the $800,000.00 verdict was exces-

sive and indicative of jury prejudice against the railroad.

The trial court may find passion and prejudice by the

jury from the excessiveness of the verdict alone. White

v. St. Louis San Francisco Ry., 602 S.W.2d at 754[5].

When the trial court has made no such finding, the appel-

late court will defer to the trial court and will not make

a finding of passion or prejudice from the amount of the

verdict alone. Id. [6]. Here the railroad argues that two

errors already raised in this appeal induced prejudice in

the jury. The errors defendant highlights include the

testimony of Anderson’s economist about Anderson’s fu-

ture wage loss and the testimony of Anderson’s fellow

employee imputing racial bias to the railroad. Since we

have already ruled against the railroad on these alleged

errors which underpin this charge of error, we likewise

rule against the railroad on this point. Id. at 755.

Al6

The railroad alternatively contends that if we reject

its claim that the verdict was a result of prejudice of

the jury, we should find under the rule of uniformity

that the verdict was excessive and remit it by one-half.

Under these circumstances, we find the recent pronounce-

ment that the doctrine of remittitur is abolished in Mis-

souri controls. See Firestone v. Crown Center Redevelop-

ment Corporation, 693 S.W.2d 99, 110[14] (Mo. banc 1985).

Railroad’s request for remittitur is denied.

Railroad’s eighth contention is that the trial court

erred in submitting M.A.I. 24.01 as the verdict director

because the instruction, by submitting general negligence

and not specific negligence, gave the jury a roving com-

mission and because the instruction denies railroads en-

gaged in interstate commerce equal protection of the law.

Railroad has lost, as it candidly admits in its brief, the

“roving commission” argument before the Missouri Su-

preme Court. Bair v. St. Louis-San Francisco Ry., 647

S.W.2d 507, 510-511[5] (Mo.banc), cert. denied sub nom.,

Burlington Northern, Inc. v. Bair, ........ MD etnies , 104 S.Ct.

107, 78 L.Ed.2d 109 (1983); Ball v. Burlington Northern

Ry., 672 S.W.2d 358, 361[1] (Mo.App.1984). We have

no alternative but to deny railroad’s point.

Railroad also contends the giving of M.A.I. 24.01 de-

nied it equal protectiun of the laws in violation of the

Fourteenth Amendment of the United States Constitution

because the instruction singles out and imposes greater

liability and burdens upon interstate railroad carriers

than it does any other corporate or private individual de-

fendant. The constitutional attack based on the equal

protection argument on the instruction has been raised

before and summarily rejected. See Fravel vy. Burling-

ton, 671 S.W.2d 339, 341 (Mo.App.1984), cert. denied sub

Al7

nom. Burlington Northern Ry. Co. v. Fravel, ........ ? :

105 S.Ct. 907, 83 L.Ed.2d 921 (1985). Point denied.

In its final point, railroad contends the trial court

erred in refusing to give its tendered verdict form, a com-

bination of M.A.I. 36.01 and 36.15, requiring the jury to

separately state the total amount of damages and the per-

centage of fault attributable to Anderson and the railroad.

Instead, the trial court gave M.A.I. 36.01 as its verdict

form, in addition to M.A.I. 24.01 (verdict director - F-.E.

L.A.), M.A.I. 8.02 (damages - F.E.L.A.), and M.A.I. 32.07

(affirmative defense - contributory negligence - F.E.L.A).

Railroad argues that since our Supreme Court adopted

apportionment of fault among joint tortfeasors in Missouri

Pacific Railroad Co. v. Whitehead & Kales Co., 566 S.W.2d

466, 473 (Mo.banc 1978) and comparative fault between

plaintiff and tortfeasor, Gustafson v. Benda, 661 S.W.2d

11 (Mo.banc 1983), F.E.L.A. cases should be governed by

the same process, so that the use of its tendered verdict

form should be mandatory. We disagree.

M.A.I. 36.15 was proposed following the decision in

Whitehead & Kales. While normally the jury inserts on

the verdict form the names of parties found liable, the Note

on Use #6 to M.A.L. 36.15 specifically requires the preparer

of the form to insert the names. The Committee’s Com-

ment states the purpose of Note on Use #6 is to forestall

any attempt on the part of the jury to assign any part of

the fault to the plaintiff. The instruction conforms to

the holding in Whitehead & Kales which apportioned fault

only between joint tortfeasors, and not the tortfeasor and

plaintiff. Gustafson, decided after the present case, spe-

cifically states its applicability was to operate prospectively

only. 661 S.W.2d at 15. Thus, the trial court here had

no alternative but to give M.A.I. 36.01 as its verdict form.

Its actions were proper. Rule 70.02(b).

Als

As a sub-point, railroad also contends that the failure

of the trial court to give its verdict form violates the Four-

teenth Amendment to the United States Constitution and

constitutes an undue burden on interstate commerce in

violation of Article I, Section Eight of the Commerce

Clause. The constitutionality of the Federal Employers’

Liability Act has been repeatedly upheld and we find no

reason to question the constitutionality of the verdict form.

Judgment affirmed.

/s/ Paul J. Simon

Paul J. Simon, Presiding Judge

/s/ Albert J. Stephan, Jr.

Albert J. Stephan, Jr.

Chief Judge Concurs

/s/ Harold L. Lowenstein

Harold L. Lowenstein

Special Judge Concurs

Alg

(Filed October 9, 1985)

ED No. 48,301

IN THE

MISSOURI COURT OF APPEALS,

EASTERN DISTRICT

Division 2

HAROLD E. ANDERSON,

Plaintiff-Respondent,

vs.

BURLINGTON NOTHERN RAILROAD COMPANY,

Defendant-Appellant.

APPELLANT’S MOTION FOR REHEARING, OR

REHEARING EN BANC, OR FOR TRANSFER TO

THE SUPREME COURT OF MISSOURI

Appellant, Burlington Northern Railroad Company,

respectfully moves the Court to set aside its decision and

opinion in the above-styled cause and grant a rehearing

of this case either in Division or in this Court en banc, in

accordance with Supreme Court Rule 8417. In the al-

ternative, appellant moves the Court to transfer this case

to the Missouri Supreme Court in accordance with Supreme

Court Rule 83.02.

MOTION FOR REHEARING

Appellant moves for rehearing in Division, or by the

Court en banc, upon the following grounds:

4. The Court, as shown by its opinion, overlooked a

material matter of law raised by appellant with respect

A20

to respondent’s verdict-directing instruction patterned after

MAI 24.01, namely that the use of said instruction in FELA

cases but in no other class of cases imposes an undue bur-

den on Interstate Commerce contrary to Article I, §8 of

the United States Constitution. Although the Court men-

tions in the opinion at pages 13 and 14 appellant’s equal

protection argument and disposes of same simply by say-

ing this point has previously been considered by the Mis-

souri Supreme Court, the opinion contains no discussion

whatever concerning appellant’s point that the use of said

instruction improperly burdens Interstate Commerce and

neither the opinion nor any case cited by the Court deals

with the merits of appellant’s equal protection argument

under the Fourteenth Amendment to the United States

Constitution. Having thus overlooked one extremely ma-

terial question of law and avoided the merits of the other,

this Court, or the Court en banc, should grant appellant

a rehearing for the purpose of deciding these issues.

ALTERNATIVE MOTION FOR TRANSFER TO

SUPREME COURT

Appellant Burlington Northern Railroad Company al-

ternatively moves this Court to transfer this appeal to the

Supreme Court of Missouri pursuant to Supreme Court

Rule 83.02, upon the following grounds:

1. The issue of the propriety of MAI 24.01 as the ver-

dict-directing instruction to be given in FELA cases is

a question of general] interest and great importance to all

interstate common carriers by railroad operating in the

State of Missouri, and to their employees who may sustain

injuries, and should be re-examined because:

A. The propriety of a verdict-directing instruction

in the form of MAI 24.01 made applicable only to

)

A21

interstate railroads needs to be re-examined by the

Missouri Supreme Court in light of the constitutional

issue raised for the first time in this case, namely

that the use of such instruction imposes an undue bur-

den on Interstate Commerce contrary to Article I,

§8 of the United States Constitution.

B. The issue of whether MAI 24.01, used as the

verdict-directing instruction only in FELA cases, de-

nies to interstate railroads the equal protection of the

laws contrary to the Fourteenth Amendment to the

United States Constitution, alhough previously raised

in other cases, has never been discussed on its merits

in any opinion of this Court or the Missouri Supreme

Court, but is an issue of general interest and im-

portance and needs to be re-examined and considered

on its merits by the Missouri Supreme Court.

Deacy & Deacy

By /s/ Edward W. Mullen

Edward W. Mullen - No. 14561

1000 Bryant Building

1102 Grand Avenue

Kansas City, MO 64106

(816) 421-4000

Attorneys for Appellant

A22

AFFIDAVIT OF SERVICE

STATE OF MISSOURI )

) ss

CITY OF ST. LOUIS )

Two copies of the foregoing motion together with

suggestions in support thereof were served on this 9th

day of October, 1985, by delivering same to:

Mr. C. Marshall Friedman

Friedman, Weitzman & Friedman, P.C.

The Advocate Building

1133 Pine Street

St. Louis, MO 63101

Attorneys for Respondent

/s/ Robert P. Schmidt

Subscribed and sworn to betore me this 9th day of Octo-

ber, 1985.

My Commission Expires: July 5, 1989

_ /s/ Richard U. Schmidt

Notary Public

_—

piciake

A23

MISSOURI COURT OF APPEALS

EASTERN DISTRICT

TO: Attorneys of Record Page one of one

RE: Motions for Rehearing/ FROM: Deirdre O. Ahr

Transfer - Denied DATE: October 28, 1985

1. 48301 - Anderson, Harold E. Resp vs.

Burlington Northern RR Co. App.

A24

IN THE SUPREME COURT OF MISSOURI

No. 67620

HAROLD E. ANDERSON,

Plaintiff-Respondent,

BURLINGTON NORTHERN RAILROAD COMPANY,

Defendant-Appellant.

APPELLANT’S APPLICATION FOR TRANSFER TO

THE SUPREME COURT OF MISSOURI

Comes now appellant pursuant to Supreme Court Rule

83.02 et seq. and moves this Court to enter its Order trans-

ferring the above case from the Missouri Court of Appeals,

Eastern District, where it bore Docket No. ED48,301, to

this Court because of the general interest and importance

of the questions involved in the case and for the purpose

of re-examining the existing law, and states:

1. That the Missouri Court of Appeals, Eastern Dis-

trict, filed an opinion in this case September 24, 1985, copy

of which is attached to and filed with this motion.

2. That appellant timely filed its motion for rehear-

ing or for rehearing en banc or for transfer to this Court

October 9, 1985, copy of which motion is attached hereto

and filed herewith.

3. That on October 28, 1985 the Missouri Court of

Appeals, Eastern District, denied said motion. Copy of

the notice of said action is attached hereto and filed here-

with.

4. This appeal is from a judgment in favor of plain-

tiff-respondent in an action brought pursuant the Federal

NOE cae re, amr Ane Leptin! cca ai Te

FE Ot WRT ee Pin te ea Oe He

A25

Employers’ Liability Act, 45 U.S.C.A. §§51 et seq. The

trial court submitted to the jury the issues of negligence

of appellant and contributory negligence of respondent

under the comparative negligence requirements of that

Act, and refused a comparative negligence form of verdict

submitted by appellant.

5. That in submitting the case to the jury the trial

court gave an instruction in the form of M.A.I. 24.01 over

appellant’s objection that said instruction gave the jury

a roving commission, submitted general negligence instead

of specific negligence as required in all cases other than

FELA cases and thereby denied to defendant-appellant

the equal protection of the law guaranteed by the Four-

teenth Amendment to the United States Constitution and

over appellant’s further objection that the use of said

instruction imposed an undue burden on interstate com-

merce in violation of Article I, §8 of the United States

Constitution. |

6. The propriety of a verdict-directing instruction

in the form of M.A.I. 24.01 used only in FELA cases against

interstate railroads should be re-examined by this Court

in light of the constitutional issues raised, namely that the

use of said instruction denies to interstate railroads the

equal protection of the laws contrary to the Fourteenth

Amendment to the United States Constitution and imposes

an undue burden on interstate commerce contrary to

Article I, §8 of the United States Constitution. The Four-

teenth Amendment issue, although previously raised in

other cases, has never been discussed on its merits in any

opinion of this Court or any of the districts of the Court

of Appeals and the use of said instruction should be re-

examined and considered on its merits by this Court.

This is an issue of general interest and importance to all

interstate railroads subject to suit in Missouri, and to all

A26

of their employees who may bring actions pursuant to

the FELA.

7. The use of M.A.I. 24.01 submitting general negli-

gence in FELA cases deprives interstate railroads subject

to the Act of the requirement applicable in all other neg-

ligence cases in Missouri which require the jury to find

specific negligent acts or omission of defendant causing or

contributing to plaintiff's injuries and thus makes it

easier for plaintiffs to obtain verdicts in FELA cases. This

imposes an undue burden on interstate commerce, as dem-

onstrated by the fact that verdicts totaling in excess of

three million dollars have been returned against appellant

alone in six FELA negligence cases (including this case)

which have been affirmed by the appellate courts of Mis-

souri since January 1, 1984 as demonstrated by the reports

of decisions appearing in the Southwestern Reporter sys-

tem.

* * *

WHEREFORE, appellant prays the Court to order this

case transferred to the Supreme Court of Missouri because

of the foregoing issues of general interest and importance

and for the purpose of re-examining the existing law of

Missouri with respect to the use of M.A.I. 24.01 in the face

of the constitutional challenges which appellant has made

to it, and to determine and rule the issue of the appropriate

form of verdict to be used both in FELA cases and all other

comparative negligence cases.

DEACY & DEACY

By /s/ Edward W. Mullen

Edward W. Mullen - No. 14561

Derek E. Wood - No. 24549

1000 Bryant Building

1102 Grand Avenue

Kansas City, MO 64106

(816) 421-4000

Attorneys for Appellant

ae ee ee _

A27

No. 67620

ED 48301

IN THE SUPREME COURT OF MISSOURI

September Session 1985

Harold E. Anderson,

Plaintiff-Respondent,

vs. TRANSFER

Burlington Northern Railroad Company,

Defendant-Appellant.

Now at this day, on consideration of Defendant-Appel-

lant’s Application to transfer the above entitled cause

from the Eastern District Court of Appeals, it is ordered

that said application be, and the same is hereby denied.

STATE OF MISSOURI—SCT.

I, THOMAS F. SIMON, Clerk of the Supreme Court of

the State of Missouri, certify that the foregoing is a full,

true and complete transcript of the judgment of said

Supreme Court, entered of record at the September Ses-

sion thereof, 1985, and on the 17th day of December 1985,

in the above entitled cause.

Given under my hand and seal of said Court, at the

City of Jefferson City, this 17th day of December, 1985.

/s/ Thomas F. Simon

Clerk

A28

STATE OF MISSOURI )

) ss.

City of St. Louis. )

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

MANDATE

No. 48301

HAROLD E. ANDERSON,

Respondent,

BURLINGTON NORTHERN

RAILROAD COMPANY,

Appellant.

Circuit Court of the City of St. Louis

No. 782-6694, Div. 5

The Court, being now sufficiently advised of and hav-

ing considered the premises, adjudges that the judgment

rendered herein by the Circuit Court of the City of St.

Louis in its cause No. 782-6694 be affirmed and stand in

full force and effect in accordance with the opinion of this

Court herein delivered September 24, 1985. Opinion by

Paul J. Simon, Presiding Judge, concurred in by Albert J.

Stephan, Jr., Chief Judge, and Harold L. Lowenstein, Spe-

cial Judge.

STATE OF MISSOURI, ss.

I, DEIRDRE O’MEARA AHR, Clerk of the Missouri

Court of Appeals, Eastern District, certify that the above

and foregoing is a full, true and complete transcript of the

A29

judgment rendered in the above entitled cause, as fully as

the same remains of record in my office.

IN TESTIMONY WHEREOF, I have hereunto set my

hand and affixed the seal of said Court, at office in the

City of St. Louis this 18th day of December 1985.

/s/ Deirdre O. Ahr

Clerk, Missouri Court of Ap-

peals, Eastern District.

A30

INSTRUCTION CONFERENCE HELD BEFORE

HON. DANIEL T. TILLMAN IN THE CIRCUIT

COURT OF THE CITY OF ST. LOUIS PRIOR TO

SUBMISSION TO THE JURY

MR. MULLEN: Is your Honor now going to make

the record on the instructions to be given?

THE COURT: Okay. I have tendered to the lawyers

instructions 1 through 10 and they have voiced no ob-

jections as to the sequence, as to which instructions are

being given. Is that right, Mr. Friedman:

MR. FRIEDMAN: Yes, sir.

THE COURT: Is that right, Mr. Mullen?

MR. MULLEN: Yes, Your Honor.

THE COURT: Do you have a statement concerning

the instructions?

MR. MULLEN: Yes, Your Honor. Without waiving

any specific complaints concerning any of the instructions

or as to the submissibility to the case generally, at this

time I do want to make a record that the defendant ob-

jects to instruction number six which is patterned after

MAI 24.01, because it gives the jury a roving commission

and constitutes a submission of general negligence, MAI

24.01 discriminates against railroad defendants operating in

intersiate commerce which makes them subject to the

Federal Employers’ Liability Act, and imposes an improper

burden on interstate commerce in violation of the Com-

merce Clause of the U.S. Constitution Article I, Section

8, and fails to give to railroads which deal in interstate

commerce the equal protection of the law with other

employers sued for personal injury.

iit ee ee |

A31

The plaintiff is singling such railroad out for dis-

parate treatment in violation of the Equal Protection

Clause of the U.S. Constitution and the Fourteenth Amend-

ment to the Constitution since in no other situation is

the giving of such general negligence or roving commis-

sion type of instructions permitted by MAI in any similar

context whatever.

(Tr. on App. pp. 1438-1440)

A32

(Filed October 17, 1983)

INSTRUCTION NO. 6

Your verdict must be for plaintiff if you believe:

First, defendant either failed to provide: reasonably safe

conditions for work, or reasonably safe appliances,

and

Second, defendant in any one or more of the respects sub-

mitted in Paragraph First was negligent, and

Third, such negligence resulted in whole or in part in

injury to plaintiff.

Instruction Given

/s/ Daniel T. Tillman

Daniel T. Tillman

A33

MISSOURI APPROVED INSTRUCTIONS

FEDERAL EMPLOYERS’ LIABILITY ACT 24.01

24.01 [1981 Revision] Verdict Directing—F.E.L.A.—

Failure to Provide Safe Place to Work

Your verdict must be for plaintiff if you believe:

First, plaintiff was an employee of defendant and a

part of his employment in some way closely and

substantially affected interstate commerce,’

and

Second, defendant either failed to provide:?

reasonably safe conditions for work, or

reasonably safe appliances, or

reasonably safe methods of work, or

reasonably adequate help, and®

Third, defendant in any one or more of the respects

submitted in Paragraph Second was negligent,‘

and®

Fourth, such negligence* resulted in whole or in part

in [injury to plaintiff] [the death of (decedent’s

name) }.

*{unless you believe plaintiff is not entitled to recover by

reason of Instruction Number ........ (here insert number

of affirmative defense instruction) ].

Committee’s Comment (1978 New)

In an F.E.L.A. case, common law negligence rules

are controlling except that these rules have been abro-

gated by F.E.L.A. Because of the “in whole or in part”

language of the statute (Title 45, U.S.C.A., Section 51),

the traditional doctrine of proximate (direct) cause is not

applicable. A railroad is liable if its negligence is only

A34

the slightest cause of the employee’s injury. Rogers v.

Mo. Pac. Ry., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493

(1957).

In the traditional negligence case, it is mandatory

for the plaintiff to include the word “direct” or “directly”

in his instruction because of the proximate (direct) cause

requirements. This prevents the jury from awarding

damages or finding for plaintiff because of some indirect

or contributing causative factors. This is not so with

F.E.L.A. The F.E.L.A. “was enacted because the Congress

was dissatisfied with the common law duty of the master

to his servant. The statute supplants that duty with the

far more drastic duty of paying damages for injury or

death at work due in whole or in part to the employer’s

negligence.” Rogers v. Mo. Pac. Ry., supra, 352 U.S. 500,

507. The test of a jury case under F.E.L.A. is simply

“whether the proofs justify within reason the conclusion

that employer’s negligence played any part, even the

slightest, in producing injury or death for which damages

are sought.” (emphasis added). Rogers v. Mo. Pac. Ry.,

supra, 352 U.S. 500, 506. The fact that there may have

been a number of causes of the injury is, therefore, irrel-

evant as long as one cause may be attributable to the

railroad’s negligence. Heater v. C & O Ry. Co., 497 F.2d

1243, 1246 (7th Cir. 1974).

As the United States Supreme Court has stated in

Rogers v. Mo. Pac. Ry., supra, in an F.E.L.A. case, the

employer railroad is stripped of its common law defenses.

The statute is an avowed departure from the rules of

common law. Our state Supreme Court has consistently

held that the federal interpretation of F.E.L.A. is binding

on the Missouri state courts. Headrick v. Kansas City

Southern Ry., 305 S.W.2d 478 (Mo.1957); Adams v. Atch-

ison, T. & S. F. Ry., 280 S.W.2d 84 (Mo.1955),

A35

STATE OF MISSOURI )

) SS

CITY OF ST. LOUIS )

IN THE

CIRCUIT COURT OF THE CITY OF ST. LOUIS

(STATE OF MISSOURI)

Monday, October 17th, 1983

Cause No. 782-6694

Division No. 5

Harold E. Anderson,

Plaintiff,

-VS-

Burlington Northern

Railroad Company,

Defendant.

JUDGMENT

This action came on for trial before the Court and

a jury, the parties appearing by their respective attorneys,

and the issues having been duly tried and the jury having

duly rendered its verdict.

Wherefore, it is considered and adjudged by the Court

that the plaintiff, Harold E. Anderson have and recover

of the defendant, Burlington Northern Railroad Company

the sum of EIGHT HUNDRED THOUSAND AND NO/100

($800,000.00) DOLLARS, with interest thereon as provided

by law, together with the costs of this proceeding and that

execution issue therefor.

/s/ Daniel T. Tillman

Judge

Oct 26 1983

Date approved

A36

STATE OF MISSOURI )

) SS

CITY OF ST. LOUIS )

(Filed July 1, 1983)

IN THE

CIRCUIT COURT OF THE CITY OF ST. LOUIS

STATE OF MISSOURI

Cause No. 782-6694

Division No. 5

HAROLD E. ANDERSON,

Plaintiff,

Vv.

BURLINGTON NORTHERN

RAILROAD COMPANY 4

Defendant.

DEFENDANT’S ALTERNATIVE MOTIONS FOR

JUDGMENT NOTWITHSTANDING VERDICT .

AND FOR NEW TRIAL

DEFENDANT’S ALTERNATIVE MOTION FOR NEW

TRIAL, OR FOR REMITTITUR

Comes now defendant and moves the Court to set

aside the verdict of the jury heretofore rendered and the .

judgment entered thereon and, in the alternative to de-

fendant’s Motion for Judgment Notwithstanding the Ver- :

dict, prays the Covrt to grant defendant a new trial of .

all the issues in this case, or alternatively to order a re- !

A37

mittitur of at least one-half the amount of said judgment,

upon the following grounds:

1. Because the verdict of the jury and the judgment

entered thereon were and are against the greater weight

of the credible evidence in the case.

2. Because the verdict and judgment were and are

excessive in amount and therefore against the greater

weight of the credible evidence in the case, and the

amount of the verdict was not and is not supported by

the evidence in the case.

7. Because the Court erred in giving, at the request

of plaintiff and over the objections of defendant, Instruc-

tion No. 6 in the form of M.A.I. 24.01 for the following

reasons:

(a) Because Instruction No. 6 fails to submit to

the jury any act or omission of defendant constituting

specific negligence, and erroneously submits to the

jury, and permits the return of a verdict in favor of

plaintiff and against the defendant on a charge of

general negligence and thus and thereby grants the

jury a roving commission to find that defendant was

negligent on unspecified grounds and to return a ver-

dict against defendant based upon such unspecified

negligence.

(b) Because Instruction No. 6 fails to specify or

limit the jury’s consideration to any particular time or

place or date as the cause of plaintiff’s injury and per-

mits the jury to return a verdict against defendant if

defendant “failed to provide reasonably safe conditions

for work, or reasonably safe appliances” to plaintiff at

any time, whether or not such conditions prevailed on

the date plaintiff claims he was injured.

A38

roving commission and permits the jury to return a

verdict against defendant regardless of how or when

the jury might have believed plaintiff’s eye was in-

jured.

(d) Because Instruction No. 6 constitutes a sub-

mission of general negligence and gives the jury a rov-

ing commission to find against defendant on unspeci-

fied grounds of negligence in a personal injury case

against defendant, an interstate common carrier by

railroad, when under the law of Missouri such a sub-

mission would be improper as to any other type or

class of defendant in the context of a personal injury

suit. Thus Instruction No. 6 and M.A.I. 24.01 as

adopted by the Supreme Court of Missouri discriminate

against railroad companies operating in interstate com-

merce or whose activities substantially affect inter-

state commerce, and are thus subject to the Federal!

Employers Liability Act, and such instruction there-

fore imposes an improper and unlawful burden on

interstate commerce in violation of the commerce

clause of the United States Constitution, Article I, §8,

and fails to give to such defendants equal protection

with other personal injury defendants or other em-

ployers in singling out such defendants for disparate

and unequal treatment in violation of the equal pro-

tection clause of the Fourteenth Amendment of the

United States Constitution, since in no other situation

is the giving of a “general negligence” instruction per-

mitted by the Missouri Approved Instructions in any

similar context.

(e) Because said Instruction No. 6, when read in

conjunction with Instruction No. 9 submitted by plain-

tiff, was indefinite, vague, ambiguous and gave the

jury a roving commission to award plaintiff damages

for such injury as they believed he might have sus-

A39

tained “. . . as a result of the occurrence of May 6,

1977 . . .” although the evidence showed several “oc-

currences” of May 6, 1977, i.e., that plaintiff was using

an air powered reamer at various times, that at differ-

ent times plaintiff was underneath the center sills of

hopper cars being constructed, that plaintiff may have

removed his glasses or goggles and rubbed his eyes,

or wiped his forehead and let a steel particle fall into

his eye; that there was no evidence whatever to sup-

port any finding or conclusion as to when the steel

particle got into plaintiff’s eye, or how it got into

plaintiff’s eye, or whether he was actually engaged in

his work at the time or had removed his eye protective

equipment and simply let the metal particle fall into

his eye from his hand, glove, sleeve, eyebrow or fore-

head, or that his getting of the metal particle into

his eye was a result of any negligence of defendant

whatever or was contributed to in whole or in part

by any negligence of defendant.

* * *

WHEREFORE, in the alternative to Defendant’s Mo-

tion for Judgment Notwithstanding Verdict, defendant

prays the Court to set aside the verdict of the jury here-

tofore rendered and judgment entered thereon, and to

grant defendant a new trial of all issues in this case, or in

the alternative, to require plaintiff to remit at least one-

half the amount of the verdict and to grant defendant a

new trial on all the issues should plaintiff refuse to do so.

Deacy & Deacy

By /s/ Edward W. Mullen

Edward W. Mullen - No. 14561

1000 Bryant Building

1102 Grand Avenue

Kansas City, MO 64106

(816) 421-4000

Attorneys for Defendant

A40

CERTIFICATE OF SERVICE

Copy of the foregoing was served by delivering same

this lst day of November, 1983 to:

Mr. C. Marshall Friedman

Mr. Thomas J. Prebil

Friedman, Weitzman & Friedman, P.C.

The Advocate Building

1133 Pine Street

St. Louis, MO 63101

Attorneys for Plaintiff

/s/ Edwards W. Mullen

A4l

(Filed January 27, 1984)

MISSOURI CIRCUIT COURT TWENTY-SECOND

JUDICIAL CIRCUIT

(St. Louis City)

HAROLD E. ANDERSON

VS.

BURLINGTON NORTHERN RAILROAD COMPANY

No. 782-6694 Room 17 January 27, 1984

MEMORANDUM FOR CLERK

Defendant’s Motion for Judgment Notwithstanding

Verdict or for New Trial taken under advisement Jan-

uary 20, 1984, is herein denied.

SO ORDERED:

/s/ Daniel T. Tillman

Daniel T. Tillman

Judge

cc: Edward W. Mullen

1000 Bryant Building

1102 Grand Ave. Kansas City, Mo. 64106

C. Marshall Friedman,

The Advocate Building, 1133 Pine St.

St. Louis, Mo. 63101

A42

POINT RELIED ON SET FORTH IN PETITIONER’S

BRIEF ON APPEAL

VIII. THE TRIAL COURT ERRED IN GIVING IN-

STRUCTION NO. 6 IN THE FORM OF M.A.I. 24.01

BECAUSE SAID INSTRUCTION FAILED TO SUB- j

MIT SPECIFIC NEGLIGENCE BUT DIRECTED ;

A VERDICT ON GENERAL NEGLIGENCE, GAVE

THE JURY A ROVING COMMISSION AND BE-

CAUSE INSTRUCTION NO. 6 AND MAI. 24.01

DISCRIMINATE AGAINST RAILROAD COM-

PANIES OPERATING IN INTERSTATE COM-

MERCE AND SUBJECT TO THE FEDERAL EM-

PLOYERS’ LIABILITY ACT THUS IMPOSING

AN IMPROPER AND UNLAWFUL BURDEN ON

INTERSTATE COMMERCE IN VIOLATION OF

THE COMMERCE CLAUSE OF THE UNITED

STATES CONSTITUTION, ARTICLE I, SECTION \

8, AND SAID INSTRUCTION FAILS TO GIVE

TO SUCH DEFENDANTS EQUAL PROTECTION

WITH OTHER PERSONAL INJURY DEFEN-

DANTS AND EMPLOYERS AND SINGLES THEM

OUT FOR DISPARATE, UNEQUAL TREATMENT

IN VIOLATION OF THE EQUAL PROTECTION

CLAUSE OF THE FOURTEENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

i inlets

est > eg hk tae AS

A43

MISSOURI SUPREME COURT RULES

RULE 70. INSTRUCTIONS

Rule 70.01. Approval of Instructions—Effective Date

—Publication Procedure

Approval of instructions in civil actions will be made

by order of this Court. The caption of the approved in-

structions shall state the effective date. The Missouri

Bar is directed to publish such approved instructions and

notes on use or committee notes as this court authorizes,

together with the date upon which the use thereof shall

be required.

Rule 70.02. Instructions to Juries

(a) Written Instructions—Giving or Refusing.

After a jury has been sworn to try a case but before

opening statements the court must read to the jury Mis-

souri Approved Instruction No. 2.01 which will be marked

and given to the jury along with the other instructions

at the close of the case but will not be reread by the court.

Before the case is submitted the court shall call a con-

ference of counsel to consider instructions. Any party

may, before the case is submitted, request the court to

instruct the jury in writing on the law applicable to the

issues. The court may give instructions on its own motion.

All instructions shall be submitted in writing and shall

be given or refused by the court according to the law

and the evidence in the case. All instructions shall be

simple, brief, impartial, free from argument, and shall

not submit to the jury or require findings of detailed

evidentiary facts. All instructions shall be read by the

court.

(b) Missouri Approved Instructions Exclude

Others. Whenever Missouri Approved Instructions

A44

contains an instruction applicable in a particular case

which the appropriate par‘y requests or the court decides

to submit, such instruction shall be given to the exclusion

of any other on the same subject.

instruction in violation of the provisions of this Rule shall

constitute error, its prejudicial effect to be judicially deter-

mined. However, the use of an approved instruction or

following notes on use before the effective date shall

not be presumed to be error.

Rule 70.03. Objections to Instructions

Counsel need not object to any instructions to be

given at the request of any other party or by the court

on its own motion or to the refusal of any instructions

requested by such party. Specific objections to instruc-

tions shall be required in motions for new trial unless

made at trial. The making of objections during trial

shall not preclude making additional objections to the

same or other instructions in the motion for new trial.

No general objection to instructions is required.

mee ei ili Ma Ate

A45

MISSOURI SUPREME COURT RULES

RULE 83. TRANSFERS FROM DISTRICT OF

COURT OF APPEALS TO THIS COURT AND

RELATED MATTERS—PROCEDURE IN THE

SUPREME COURT

Rule 83.03. Transfer by Supreme Court After Opinion

by Court of Appeals

In any case in which a motion for rehearing has been

overruled and an application for transfer under rule

83.02 has been denied, the case may be transferred by or-

der of this court on application of a party for any of the

reasons specified in rule 83.02, or for the reason that the

opinion filed is contrary to a previous decision of an ap-

pellate court of this state. Application for such transfer

shall be filed in this court within 15 days of the date on

which transfer was denied by the court of appeals. Mo-

tions for reconsideration of the court’s action in refusing

an application for transfer shall not be accepted or filed.

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.