# Petition for Writ of Certiorari — Burlington Northern Railroad v. Anderson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1644%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1116 ## Text 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 I. 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? II 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 oe NIRS Vv 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 VI 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. 2 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 4 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- 5 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 6 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. | ; 7 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 9 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 10 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 11 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 * 12 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 13 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 14 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. 15 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 16 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 17 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 18 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). 19 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 20 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. 21 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- 22 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, 23 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, 24 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 IT 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 Al 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 A2 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; A3 (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 A4 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 A5 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 A6 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 AT 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 A8 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: Q. [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 Q. A. Q. 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 A9 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, v. 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, VS 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 | 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 . 4 DEFENDANT’S ALTERNATIVE MOTION FOR NEW TRIAL, OR FOR REMITTITUR 4 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 (c) Because Instruction No. 6 gives the jury a 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. (c) Violation of Rule—Effect. The giving of an 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. ee 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1644%3A1. Public record. Not legal advice.