Opposition Brief — Burlington Northern Railroad v. Anderson

Supreme Court, U.S.

~\ FILED

. ! APR 15 1995

N 0. 85-1574 JOSEPH F. SPANIOL, JR.

IN Tit

Supreme Court of the United States

Oc roBeR Teri. 1985

BURLINGTON NORTHERN RAILROAD COMPANY,

Petitioner,

VS.

Haroip E. ANDERSON,

Respondent.

On Petition for Writ of Certiorari

lo The Missouri Court of Appeals

Eastern District

BRIEF FOR RESPONDENT

IN OPPOSITION

C. MARSHALL FRIEDMAN

C. MARSHALL FRIEDMAN, P.C.

The Advocate Building

1133 Pine Street

St. Louis, Missouri 63101

(314) 621-2200

Attorneys for Respondent

Harold E. Anderson

St. Lous Law Printing Co.,Inc., 411 No. Tenth Street 63101 314-231-4477

QUESTIONS PRESENTED

1. Whether the Missouri State Court, in complete conformity

with the decisions of this Court authorizing submission of

general negligence issues to juries in FELA actions, properly

submitted general negligence issues to the jury in this FELA ac-

tion, as is also done in other state court negligence actions in

which the substantive law and evidence provide for recovery

based upon a finding of general negligence.

II. Whether any state regulation of or undue burden is impos-

ed upon interstate commerce when a Missouri State Court per-

mits an FELA plaintiff to bring an action in state court pur-

suant to the FELA to vindicate his federal rights pursuant to

federal law and the jury is properly instructed in accordance

with the federal substantive law.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Bair v. St. Louis-San Francisco Railway Co., 647 S.W.

2d 507, 510 (Mo. banc, 1983) cert. denied sub.

nom. Burlington Northern, Inc. v. Bair, U.S.

oe |)

Baltimore & O.R. Co. v. Kepner, 314 U.S. 44, 52, 62

EE a ee

Blair v. Baltimore & O.R. Co., 323 U.S. 600, 604, 65

a Gcu se bccceeeceess

Boeing Co. v. Shipman, 411 F.2d 365, 371 (Sth Cir.

ee eee ee eee

Brotherhood of Locomotive Firemen & Enginemen v.

Chicago, Rock Island & Pacific Railroad Com-

pany, 393 U.S. 130, 144, 89 S.Ct. 323, 331 (1968)..

Brown v. Gerdes, 321 U.S. 178, 189-190, 64 S.Ct. 487,

Gel ae coke veer eked eos mae se

19

4,5

18

16

Chicago, Rock Island & Pacific R.R. v. Melcher, 333

F.2d 996, 999-1000 (8th Cir. 1964) ..............

Collins v. American Buslines, Inc., 350 U.S. 528, 531,

FR AL, Sl SNE 0 oe cA h Um oa ae eis oes ees

Dunn v. St. Louis-San Francisco Railway Co., 621 S.W.

2d 245, 254-255 (Mo. banc 1981), cert. denied sub.

nom., Burlington Northern Railroad Co. v. Dunn,

454 U.S. 1145, 102 S.Ct. 1007 (1982) ............

G. D. Searle & Co. v. Cohn, 455 U.S. 404, 408, 102

DAR. BEG ey Fae Os es A ose ca koe ee

Griffith v. St. Louis-San Francisco Railway Co., 559

S.W.2d 278, 280 (Mo.App. 1977), cert. denied, 436

1) ch. ay Pe as AMD CROTON vi vec cee cee eb eee

Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744

ERT oo wae ry aedve chen eae ee

Lyons v. State of Oklahoma, 322 U.S. 596, 601 64 S.Ct.

Ty Re Rs 5h ne 5.005 4A Osea eee ROS

Marshell v. Burlington Northern, Inc., 637 S.W.2d 168,

POP ACTA, SINUIEE. onus 0c cu poe bk bsSe se knees be

Meredith v. Missouri Pacific Railroad Co., 467 S.W.2d

Le. eo) es cee

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

MS eis Ey Oe as WPAN in be vd Rea ees

Mondou v. New York, New Haven & Hartford Railroad

Compeny, £25 US. 6 Se BAe ne to vceis acne

Ricketts v. Kansas City Stock Yards Co., 484 S.W.2d

25G, £00-2ak CN. CONG TIT) ikc sk cu dcchavenves

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

507-509, 77 S.Ct. 443, 448-450 (1957)............

16

16

16

16

17

15

Royster v. Pittman, 691 S.W.2d 305, 308 (Mo.App.

SRD oe a Ea eee Sa SOE PE RES ow ee 6

Shenker v. Baltimore & Ohio Railroad Co., 374 U.S. 1.

pcp he MR ys vets, ere is

Sinkler v. Missouri Paci Railroad Company, 356 U.S.

pe. Re oS ee Ay a) 5

Union Pacific R. Co. v. Hadley, 246 U.S. 330, 38 S.Ct.

SERRE aerate aes coe pareanere eee eS ee 3, 4, 16

Webb v. Illinois Central Railroad Co., 352 U.S. 512, 77

Bg Se). DRE aaa ere ae err 16

White v. St. Louis-San Francisco Railway Co., 602

S.W.2d 748, 754 (Mo.App. 1980) ............... 3

Statutes:

pp eae i fo. a a ae a re eer we a S. 37

SO0D. 7-200 RS .AGO. (ISBT) ics ccc cee erence ceeraee 6

No. 85-1574

IN THE

Supreme Court of the United States

OcroBeERk TERM, 1985

BURLINGTON NORTHERN RAILROAD COMPANY,

Petitioner,

VS.

HAROLD E. ANDERSON,

Respondent.

On Petition for Writ of Certiorari

To The Missouri Court of Appeals

Eastern District

BRIEF FOR RESPONDENT

IN OPPOSITION

JURISDICTIONAL STATEMENT

Respondent (hereinafter, ‘‘plaintiff’’) accepts petitioner’s

(hereinafter ‘‘defendant’’) Jurisdictional Statement with the

following exceptions: Plaintiff specifically denies that the pat-

tern jury instructions defendant challenges are in any manner

unconstitutional or that the judgment of the Missouri Court of

Appeals is contrary to any applicable decision of this Court or

the highest courts of the several other states.

Cae, ae

STATEMENT OF THE CASE

Defendant’s Statement Of The Case does not constitute a full

and fair statement of facts relevant to the issues herein. In order

to avoid repetition additional relevant facts will be set forth in

the argument.

aie am

ARGUMENT

I.

Absolutely No Equal Protection Violation Occurred As A

Result Of Submitting The Instant Case On Plaintiff’s Verdict

Directing Instruction Patterned After MAI 24.01. MAT 24.01 Is

Consistent With The Substantive Law Of The FELA And, Ac-

cordingly, The Form Of The Instruction Is A Question To Be

Determined By State Law.

Defendant’s contentions concerning MAI 24.01 have

previously been raised and consistently rejected in Bair v. St.

Louis-San Francisco Railway Co., 647 S.W.2d 507, 510 (Mo.

banc, 1983) cert. denied sub. nom. Burlington Northern, Inc. v.

Bair, ____ U.S. ___, 104 S.Ct. 107, (1983), Dunn vy. St. Louis-

San Francisco Railway Co., 621 S.W.2d 245, 254-255 (Mo. banc

1981), cert. denied sud. nom., Burlington Northern Railroad

Co. v. Dunn, 454 U.S. 1145, 102 S.Ct. 1007 (1982); Griffith v.

St. Louis-San Francisco Railway Co., 559 S.W.2d 278, 280

(Mo.App. 1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2821

(1978); White v. St. Louis-San Francisco Railway Co., 602

S.W.2d 748, 754 (Mo.App. i980); Marshell v. Burlington Nor-

thern, Inc., 637 S.W.2d 168, 169 (Mo.App. 1982).

Plaintiff’s verdict directing instruction and MAI 24.01 com-

pletely comply with the substantive law of the FELA, and

defendant has not contended otherwise. Almost 70 years ago,

this Court authorized the submission of a railroad defendant’s

negligence under general negligence instructions. In Union

Pacific R. Co. v. Hadley, 246 U.S. 330, 38 S.Ct. 318 (1918), this

Court rejected the defendant railroad’s challenge to a submis-

sion of general negligence to the jury in emphatic terms, speak-

ing through Justice Ho!mes:

*“On the question of its negligence the defendant under-

took to split up the charge into items mentioned in the

declaration as constituent elements and to ask a ruling as

—

to each. But the whole may be greater than the sum of its

parts, and the Court was justified in leaving the general

question to the jury if it thought that the defendant should

not be allowed to take the bundle apart and break the

sticks separately, and if the defendant’s conduct viewed as

a whole warranted a finding of neglect. Upon that point

there can be no question. We are not left to the mere hap-

pening of the accident. There were block signals working

on the road that gave automatic warning of danger to 501,

and which it was negligent to pass, seen or unseen, as the

engine crew knew where they were and that another train

was not far ahead. There was a snow storm raging which

the jury might have found to have been of unprecedented

violence, and it was open to them to find in view of cir-

cumstances unnecessary to detail that the dispatcher ought

not to have sent out Extra 510 West as he did and that he

was grossly wrong in not allowing 504 to come in and in

not leaving it to 501 to bring back the disabled engine. It

might have been found improper to leave the conductor of

501 at Potter. It is superfluous to say more upon this

point.”’

246 U.S. at 332-333, 38 S.Ct. at 319 (emphasis supplied). Conse-

quently, Hadley expressly authorizes submission of general

negligence issues to the jury under the FELA.

The principle that a finding of general negligence is ap-

propriate and sufficient under the FELA has, since Hadley,

been reaffirmed by this Court. The holding in Hadley was

reiterated by this Court in Blair v. Baltimore & O.R. Co., 323

U.S. 600, 604, 65 S.Ct. 545, 547 (1945), as follows:

‘*The negligence of the employer may be determined by

viewing its conduct as a whole. Union Pacific Railroad Co.

v. Hadley, 246 U.S. 330, 332, 333, 38 S.Ct. 318, 319, 62

L.Ed. 751. And especially is this true in a case such as this,

where the several elements from which negligence might be

=

inferred are so closely interwoven as to form a single pat-

tern, and where each imparts character to the others.”’

This Court’s decisions in Hadley and Blair, therefore, express-

ly authorize submission of and a finding in favor of a plaintiff

and against a defendant railroad, under the FELA, based upon

said defendant’s general negligence.

The FELA is an avowed departure from common law

negligence rules of liability, and said common law rules are not

to be followed or depended upon in interpretting the FELA.

Sinkler v. Missouri Pacific Railroad Company, 356 U.S. 326,

329, 78 S.Ct. 758, 762 (1958). The differences between the

substantive law of the FELA and Missouri common law

negligence actions justify submission of general negligence

issues in the former, while authorizing submission of specific

negligence issues in the latter. This was recognized and explain-

ed by the Missouri Supreme Court in Ricketts v. Kansas City

Stock Yards Co., 484 S.W.2d 216, 221-222 (Mo. banc 1972).

The Missouri Supreme Court explained the general submission

of negligence in MAI 24.01 as follows:

“The Act [F.E.L.A.] provides an employer under it shall

be liable ‘‘for such injury or death resulting in whole or in

part from the negligence of any of the officers, agents, or

employees.’’ 45 U.S.C. §51. As recently said in Boeing Co.

v. Shipman, Sth Cir., 411 F.2d 365, 371: ‘‘Slight

negligence, necessary to support an F.E.L.A. action, is

defined as ‘a failure to exercise great care,’ and that

burden of proof, obviously, is much less than the burden

required to sustain recovery in ordinary negligence actions.

Prosser, Law of Torts, §34, p. 186 (3d ed. 1964)’’; see also

Prosser, Law of Torts, §82, p. 560, noting as to the

F.E.L.A. negligence; ‘‘This has been said to reduce the ex-

tent of the negligence required, as well as the quantum of

proof necessary to establish it, to the ‘vanishing point.’ ”’

This would seem to be a reason for MAI to allow a general

submission of negligence in F.E.L.A. cases.”’

—

484 S.W.2d at 221 (emphasis supplied). The substantive dif-

ferences, therefore, between the ordinary Missouri common law

negligence action and an action premised upon the FELA com-

pletely justify the differences in the verdict directing instructions

utilized.

Furthermore, defendants contention that general negligence

submissions are prohibited under Missouri law, and that railroad

defendants are treated like no other defendants against whom

negligence actions are brought, is simply incorrect. In a recent

decision in an action brought to recover damages pursuant to

§400.7-204 RSMo (1981) which requires a defendant to exercise

such care ‘‘as a reasonably careful man would exercise under

like circumstances’’, the Missouri Court of Appeals ruled not

only that a general negligence submission was appropriate, but

also recommended that the submission of defendant’s

negligence be based upon pattern instruction MAI 31.02(3),

Verdict Directing—Res Ipsa Loquitur—General, stating:

‘*[6, 7] Pittman’s [Defendant] second point suggests in-

structional error. Instruction No. 7, the verdict director,

was based on multiple acts of negligence and was a

modification of MAI 17.02. Pittman says this instruction

failed to instruct on the warehouseman’s duty and failed to

set oul the specific acts or omissions of Pittman which con-

stituted a breach of the duty of negligence.

[8] For the submission of an action for general

negligence against a warehouseman bailee, MAI 31.02(3),

based upon the res ipsa loquitor doctrine, would have been

appropriate in this case.’’

Royster v. Pittman, 691 S.W.2d 305, 308 (Mo.App. 1985)

[Bracketed material and emphasis supplied]. Where the

substantive law and the evidence support one, as in Royster and

the instant case, general negligence and even res ipsa loquitur

submissions are proper and provided for by Missouri law and

MAI. Moreover, FELA defendants are not treated differently

from all other defendants against whom negligence actions are

brought in the Missouri state courts.

~~

Here the substantive law, as declared by this Court in Union

Pacific R. Co. v. Hadley, 246 U.S. 330, 38 S.Ct. 318 (1918) and

Blair v. Baltimore & O. R. Co., 323 U.S. 600, 65 S.Ct. 545

(1945), expressly authorize a general negligence submission.

Moreover, as discussed below, the evidence unquestionably

makes this an appropriate case for such a submission.

Plaintiff’s verdict director submitted alternative findings of

negligence to the jury: ‘*‘First, defendant either failed to pro-

vide: reasonably safe conditions for work, or reasonably safe

appliances,...”’. Plaintiff presented evidence that overwhelm-

ingly established defendant failed to provide reasonably safe

working conditions due to the fact that the metal shavings, dust,

dirt and debris that were created and allowed to accumulate and

defendant failed to provide reasonably safe appliances cue to

the total inadequacy of the eye protective equipment defendant

issued which allowed metal shavings, and other debris to get on

the face, in the vicinity of the eyes and the eyes of plaintiff and

other workers. As more fully set forth below the evidence

presented at trial fully justified the submission of the case to the

jury on the alternative findings set forth in plaintiff’s verdict

directing instruction. Indeed, there was more than sufficient

evidence for the jury to find negligence in both defendant’s

failure to provide reasonably safe conditions for work or

reasonably safe appliances.

Plaintiff began working for defendant on August 9, 1976,

washing and cleaning cabooses and business cars. (T. 487)

Plaintiff received no instructions or training of any type pertain-

ing to eye protection. (T. 488, 489) Plaintiff ws assigned to work

on the hopper car assembly line at position number 4 about two

months before his injury on May 6, 1977. (T. 490) No foreman

showed plaintiff how to do the job; he was merely told to ‘‘get

with Emmitt [Davenport, a co-worker], and do the job’’. (T.

491) Davenport had been put on the hopper car assembly pro-

gram with no training or prior experience and had been working

at position 4 for eight or nine months before plaintiff was in-

jured. (T. 272, 274)

— po

At defendant’s Consolidated Freight Car Shop, defendant

manufactured hopper cars on an assembly line basis. The cars

were assembled at different positions on the line and the end

result was a completed hopper car. A steel beam called a center

sill ran the length of the hopper car and formed the main sup-

port. (T. 83) The center sill was hollow with a partial opening

along the bottom with a lip on either side running its entire

length. (T. 83) At position number 3, six hopper chutes were at-

tached to the center sill in 3 pairs, with a chute on each side of

the center sill. (T. 121, 255) Plaintiff worked at position number

4. At position 4, a pre-formed piece of metal called a hog trough

was put over the hopper chutes and the center sill. (T. 83, 121,

122) There were pre-drilled holes in each of these pieces which

did not align properly and an air-powered reamer was regularly

used to ream out the holes. (T. 122, 241, 242) Twelve holes in

each chute were reamed at position 4. All but two holes involved

all three thicknesses of metal. (T. 90, 241) Employees stuck

special bolts called huck-bolts in each reamed hole by reaching

up inside the center sill from beneath the hopper car. (T. 126,

127, 167, 168, 283, 284, 501, 505) Employees were required to

look up at the hole while sticking the bolts. A huck-gun was us-

ed to tighten and fasten the bolts in place and snapped off the

end of the bolt. (T. 96) In addition, the workers at position 4

would hammer clamps in place to hold the air lines for the brake

system. (T. 296) Once this work at position four was completed

the car was moved to position five where the sides were hung

and other work was done on the car. (T. 529).

Plaintiff and several witnesses, all familiar with position 4,

testified as to the type of work done there, the tools and equip-

ment used, and the unsafe conditions that existed at position 4.

At trial, a full scale model of a partially constructed hopper car

was Offered and received into evidence as Plaintift’s Exhibit No.

3. (T. 182, 183) This model consisted of a portion of the center

sill with a portion of the hopper chute and hog trough attached

and was used in demonstrating the work performed at position

— =

number four. (T. 87, 89, 90, 189, 190, 239, 279, 280) An air-

powered reamer with 4 reaming bit was offered and received in-

to evidence as Plaintiff’s Exhibit No. 4. (T. 182, 183) A huck-

bolt of the same variety as used at position four was in evidence

as Plaintiff’s Exhibit No. 4A. (T. 182, 183) By use of the model,

reamer and huck-bolt, witnesses demonstrated to the jury the

manner in which the work was performed.

Defendant issued plaintiff ‘‘safety’’ glasses marked as Plain-

tiff’s Exhibit No. 16. Plaintiff was assigned to work with

Emmitt Davenport who knew nothing about eye protection and

wore the same type of safety glasses as plaintiff. (T. 275, 276,

278, 491) No one took exception to plaintiff wearing these safe-

ty glasses or told him he should be wearing anything different.

(T. 493, 494, 514) These safety glasses issued to plaintiff and

worn by him at the time of his injury were nothing more than

spectacles, horned rimmed glasses with perforated plastic side

shields. (T. 366, 491) These glasses were inadequate and afford-

ed plaintiff no more protection than regular eye glasses. (T.

365-366) Metal shavings from the work at position 4 got in

behind the glasses, in the vicinity of the eyes and also into the

eyes themselves through the gaps at the top and bottom of the

frame, at the brow, around the cheeks and adjacent to the nose.

(T. 501, 502) These glasses, Plaintiff’s Exhibit 16, simply did

not prevent metal shavings, created by the work at position 4,

from getting into the eyes and area of the eyes of employees, in-

cluding plaintiff. As set forth in more detail below, employees

repeatedly complained about these glasses and requested better

eye protection prior to plaintiff’s injury.

Apart from the fact that the glasses provided to plaintiff were

totally inadequate, there was overwhelming evidence that the

working conditions at position number 4 where plaintiff worked

were not reasonably safe and in fact created hazards for the

workers. The jury heard the detailed and substantial testimony

of plaintiff and several witnesses, all of whom had personally

worked at position number 4 and experienced the same hazar-

dous working conditions at position number 4.

— Fo

As set forth above, an air-powered reamer was used at posi-

tion number 4 to ream out pre-drilled holes in the hog troughs,

hopper chutes and center sills to allow huck-bolts to fit through.

(T. 122, 242) The reamer used at position number 4 was

powered by compressed air and had an exhaust vent which

pointed forward toward the front where the reamer bit came in-

to contact with the metal to be reamed. (T. 93, 281) The exhaust

from the reamer caused metal shavings lying on and about the

center sill and slope sheets to be blown about striking the

employees in the face, vicinity of the eyes and in the eyes. (T.

93-94, 192, 242, 281, 501) In total there were six hopper chutes

in three pairs attached to each side of the center sill. (T. 282) Of

the twelve holes at each chute all but two involved reaming all

three thicknesses of metal. (T. 90, 241) Reaming the holes would

generate a lot of metal shavings, which would collect on the

slope chutes and center sill of the hopper car. (T. 93, 94. 241,

242, 258, 507, 508) Some of the metal shavings would fall

through to the other side where they would collect on the lips of

the center sill of the car or fall to the floor while the rest of the

shavings would stay on the same side as the reamer. (T. 95, 105,

109, 110, 153, 205, 500, 508)

In reaming the holes the workers were required to crawl into

the center of the hopper chute from underneath, stand on the

floor, and lean along the length of the hopper chute supporting

themselves with their legs, elbow, and shoulder while holding

the reamer to get up to the holes. They could not do the job any

differently, nor were they ever instructed to do the job any dif-

ferently. (T. 90, 91, 148, 149, 190, 239, 240, 322, 323, 501) The

metal shavings would be blown by the exhaust from the reamer,

and would bounce off of the hopper chute (also called the slope

sheet), the hog trough, and the center sill and would get in the

clothes, hair, face, eyebrows, in the vicinity of the eyes, and in

the eyes of the workers on numerous occasions. (T. 93, 94, 192,

193, 265, 282, 501) Hot reamer shavings would come out, stick,

and burn through the employees clothes. (T. 241) Dirt, dust,

— ; oo

metal shavings and rust that would collect on the hopper chute

would be blown about by the exhaust. (T. 242)

Employees were also required to stick huck-bolts at the

number 4 position. The only way to stick the huck-bolts into the

holes was to crawl beneath the center sill, squeeze in between the

hopper chutes and look up toward and reach in from directly

beneath the holes with one hand while using the other hand or

elbow for support. (T. 126, 127, 167, 168, 283, 284, 501, 505)

Shavings which had collected on the lips on the inside of the

center sill would fall down when employees stuck the bolts in

the holes and would get into the clothes, hair, face, the vicinity

of the eyes, and in the eyes. (T. 285, 501, 502, 504) The gloves

which the workers wore to protect their hands from the shavings

and sharp surfaces had stiff sides which extended over the wrist

and brushed down metal shavings into the employees’ faces

while they were sticking the huck-bolts. (T. 166, 167, 176, 177,

178, 284, 285, 506) The hazards from the metal shavings falling

into employees’ faces and eyes was increased when the defen-

dant required one worker to stick bolts at the same time another

reamed or used the huck gun to speed production. (T. 159, 160,

163, 164, 180, 181, 248, 294, 503) The reaming would generate

even more shavings which would collect on the center sill and

fall through the opening while the impact of the huck gun snap-

ping off the bolts would shake additional shavings loose from

the impact which in turn would fall onto the face of the worker

inserting the huck-bolts. (T. 97, 154, 294, 295, 504) Additional

shavings would fall into the employees’ faces while hammering

clamps in place to hold the air lines for the brake system. (T.

168, 169, 295, 296, 504, 505) Further, the shavings would collect

on the floor along the length of the car where they would be

allowed to accumulate because there were no laborers provided

to clean up along the line. (T. 110, 242, 243, 292, 293) When

wind would blow through the open doors of the freight car

shop, the metal shavings, particles, dust and other debris which

had accumulated would blow around. (T. 197)

ma RS

—

The jury heard substantial testimony from plaintiff and

several witnesses that they had repeatedly complained about the

hazardous conditions they personally experienced while work-

ing at position number four. Complaints had been made per-

sonally to the foremen and the problems and hazards were

brought up numerous times at safety meetings. (T. 113, 192,

195, 244, 246, 228, 499, 500, 502, 503) Complaints were made

that the shavings were being blown around by the exhaust and

back into the clothes, hair, face, vicinity of the eyes and the eyes

of the workers while they were reaming. (T. 1ii, 245, 501, 502)

Similarly, complaints were also made about the shavings falling

down on the workers while they were sticking the huck-boits

underneath the center sills and getting in the clothes, hair, face,

vicinity of the eyes, and the eyes of the workers. (T. 501) Plain-

tiff and the witnesses al! complained about the accumulation of

the shavings, dirt, dust and debris and requested laborers be

provided to clean up at position number four. (T. 193, 287, 288,

500, 508) There was also testimony that the workers were not

allowed enough time to clean up the shavings themselves and

were discouraged in their attempts to do so. (T. 178, 316, 317)

Despite numerous complaints nothing was ever done before

plaintiff was injured. (T. 112, 132, 288, 289) There was also the

overwhelming evidence of numerous complaints about par-

ticles, dust, and metal shavings getting behind the safety glasses

marked Plaintiff’s Exhibit No. 16, into the vicinity of the eyes

and in the eyes themselves.

The personal experience these witnesses had with the inade-

quate eye protection afforded by the safety glasses (Pl. Ex. 16),

was further supported by the expert testimony of Mr. James

O’Neal. Taking into account the conditions at position number

four, Mr. O’Neal testified unequivocally that the safety glasses

marked Plaintiff’s Exhibit No. 16 were totally inadequate for

the eye safety hazards encountered at position number 4

because of the gaps above the eyebrow and at the side. (T.

362-366) Mr. O’Neal was Director of Industrial Services for the

National Society to Prevent Blindness, working at their offices

in New York for almost 28 years. (T. 342) As the representative

from the National Society to Prevent Blindness, Mr. O’Neal

was intimately involved with the American National Standards

Institute (ANSI) which promulgated eyewear safety standards.

(T. 344-349) Prior to this employment Mr. O’Neal had worked

as a machinist and was familiar with air-powered reamers, hav-

ing used them to ream metal. (T. 356) Mr. O’Neal was familiar

with hopper cars and with a hopper car assembly program. (T.

362)

The evidence overwhelmingly showed that the safety glasses

(Plaintiff’s Exhibit 16) were totally inadequate. The jury heard

testimony that other eye protective equipment was readily

available on the market that would have afforded plaintiff the

necessary protection in light of the eye safety hazards en-

countered at position number 4. Mr. O’Neal gave his opinion as

an expert, which was further supported by the witnesses at trial,

that the black rubber frame goggle (also called the black Bouton

goggle) marked Plaintiff's Exhibit 12 and admitted into

evidence, when worn in combination with a face shield attaced

to the hard hats which the workers wore, Plaintiff’s Exhibit No.

11, would provide adequate protection, preventing metal shav-

ings from getting in the face, in the vicinity of the eyes and most

importantly in the eyes themselves. (T. 116-118, 195, 222, 286,

364-369, 586) Unlike the ‘‘safety’’ glasses (Pl. Ex. 16) issued to

plaintiff which had numerous gaps permitting the entry of metal

shavings into the area of the eye, the black rubber goggles (PI.

Ex. 12) recommended by O’Neal were form fitting, were con-

toured, and had a wide rubber lip. (T. 369) Unlike the ‘‘safety’’

glasses (PI. Ex. 16), the black rubber goggles always provided a

terrific fit. (T. 369) Of course, plaintiff was never provided

these black rubber frame goggles or face shield prior to his in-

jury. Additionally, the jury heard testimony from Mr. O’Neal

that a proper eye safety program would tailor the eye protection

to the particular conditions and hazards encountered at each

job. (T. 359-361) Defendant had no eye protection program

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during the time of the hopper assembly program. The

employees received no instructions, training or classes as to the

eye hazards they would encounter, nor were there any instruc-

tions or supervision in the proper selection and use of eye pro-

tectii -auipment. (T. 84, 85, 100, 187, 237-239, 273, 275, 488,

492-494)

At the time of the occurrence on May 6, 1977 plaintiff was

working at position number four. (T. 503) He first felt

something unusual at about 2:00 or 2:30 that Friday afternoon.

(T. 506) He was reaming the last three holes on the end of the

chute when he first felt something unusual. (T. 507) These holes

were adjacent to the slope sheet. (T. 507) He had previously

been sticking huck-bolts under the sill. (T. 507) The working

conditions were as previously described. (T. 507) Plaintiff ream-

ed the last three holes and felt his eye burning. (T. 508) It ream-

ed the last three holes and felt his eye burning. (T. 508) It was an

irritated feeling, like a flashburn, a burn to the eye caused by ar-

cing a weld too close to a worker. (T. 508) Flashburns were fre-

quent occurrences and would last about two or three days. (T.

$09) Plaintiff went to his foreman’s office and got some eye

wash to wash his eye and returned to work. (T. 509) Plaintiff

was off work on Saturday and Sunday. (T. 510) He stayed at

home with the lights off because he could not stand the light.

(T. 510) When plaintiff returned to work on Monday his eye still

burned. (T. 510) Plaintiff continued to complain to his foremen

about the injury to his eye and received only minor first-aid

treatment up until the time that he was sent to see the Frisco

doctor, Dr. Stewart, who drilled in plaintiff’s eye and removed

a piece of steel. (T. 510, 512). Ultimately his eye was enucleated

(surgically removed) and a prosthetic conformer implanted.

From the foregoing it is clear that the evidence overwhelming-

ly established that the injury to plaintiff rsulted from the total

inadequacy of the safety glasses that plaintiff was issued and

was wearing at the time of his injury. The evidence clearly

demonstrates that the safety glasses completely failed to protect

aa | |

——

ae, ae

plaintiff from the hazardous conditions he encountered while

working at position number 4. Had plaintiff been provided the

rubber goggles (Pl. Ex. 12) and face shield (PI. Ex. 11) described

by expert witness O’Neal his injury could have been avoided.

The applicable substantive law and the evidence in the instant

case completely justifies plaintiff's submission under MAI

24.01, even though specific negligence submissions are

customarily utilized in ordinary Missouri common law

negligence actions. Here, several aspects of the working condi-

tions (i.e. accumulation of shavings, blowing of shavings by the

wind, shavings being propelled by the reamer bit and exhaust,

accumulated shavings dropping on employees while sticking

bolts) were all closely interwoven in a single pattern comprising

the unsafe working conditions to which plaintiff was exposed.

Rather than being separate assignments or grounds of

negligence, as contended by defendant, they are merely dif-

ferent aspects of the overall working conditions to which plain-

tiff was exposed and which were found by the jury to be unsafe.

The instant case—more than either Hadley or Blair—was un-

questionably a proper one for a general negligence submission.

Under the provisions of the Federal Employer’s Liability Act,

defendant was obligated to fulfill its nondelegable duty to pro-

vide plaintiff with reasonably safe conditions and reasonably

safe appliances for work, stripped of its common law defenses

and liable if its negligence played any part, however slight, in

producing plaintiff’s injuries. This is a statutory negligence ac-

tion that makes it substantively different from the ordinary com-

mon law negligence action. 45 U.S.C. Section 51, Rogers v.

Missouri Pacific Railroad Co., 352 U.S. 500, 507-509, 77 S.Ct.

443, 448-450 (1957); Shenker v. Baltimore & Ohio Railroad Co.,

374 U.S. 1, 7, 83 S.Ct. 1667, 1671-1672 (1963). Under the

FELA, juries are not limited in their consideration of the

evidence, as they are under common law actions. Chicago,

Rock Island & Pacific R.R. v. Melcher, 333 F.2d 996, 999-1000

(8th Cir. 1964). They are permitted to draw inferrences based

a!

upon circumstantial evidence even though such inferrences

might involve some speculation and conjecture. Webb v. Illinois

Central Railroad Co., 352 U.S. 512, 77 S.Ct. 451 (1957);

Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744 (1946).

Plaintiff’s verdict directing instruction properly submitted the

ultimate issue of liability under the applicable substantive law.

Missouri rules concerning the form of approved instructions

are procedural in nature. Meredith v. Missouri Pacific Railroad

Co., 467 S.W.2d 79, 82 (Mo. 1971). When, as here, an instruc-

tion in an F.E.L.A. case correctly states the substantive law and

is clearly supported by the evidence, the form of the instruction

is a matter left to state procedural law. Union Pacific Railroad

Co. v. Hadley, 246 U.S. 330, 38 S.Ct. 318 (1918); Minneapolis

& St. Louis Railroad Co. v. Bombolis, 241 U.S. 211, 36 S.Ct.

§95 (1916); C.f., Lyons v. State of Oklahoma, 322 U.S. 596,

601, 64 S.Ct. 1208, 1212 (1944); Brown v. Gerdes, 321 U.S. 178,

189-190, 64 S.Ct. 487, 492-493 (1944) (concurring opinion).

The applicable substantive law and the evidence completely

justified submission under MAI 24.01 in the instant case under

the controlling decisions of this Court. Consequently, it is of no

import that in many ordinary Missouri common law actions,

submissions of specific negligence may be required. The dif-

ference in the substantive law and the evidence in the instant

case provides a rational basis for submitting general negligence

issues to the jury. Since there was a rational basis for treating

the instant case differently from ordinary common law

negligence actions, defendant’s right to equal protection is not

implicated. G. D. Searle & Co. v. Cohn, 455 U.S. 404, 408, 102

S.Ct. 1137, 1141 (1982).

oe

If,

No Violation Of The Interstate Commerce Clause, Article

One, Section Eight Of The United States Constitution, Has Or

Can Be Demonstrated. In The Instant Case, Plaintiff Was Vin-

dicating Federal Rights Granted To Him By The Congress Of

The United States Under 45 U.S.C. §51 Et. Seq. The FELA

Specifically Provides That Actions For The Recovery Of

Damages Based Upon An Employer-Railroad’s Negligence May

Be Brought In State Court. Consequently, Plaintiff Was Vin-

dicating His Federal Rights Pursuant To Federal Law And No

State Regulation Of Interstate Commerce Occurred. Nor Has

Any Undue Burden On Interstate Commerce Resulting From

Any State Regulation Been Implicated.

In the instant case, defendant has totally failed to

demonstrate that any state regulation of interstate commerce in-

consistent with the federal law applicable to said interstate com-

merce has occurred. Quite to the contrary, plaintiff brought suit

in the state court to vindicate federal rights granted under the

FELA, 45 U.S.C. §51 et. seq. As set forth more fully above, the

law applied by the Missouri state courts in the instant case was

in complete harmony with the federal decisions under the

FELA. Defendant’s contention, therefore, that Missouri im-

poses an undue burden on interstate commerce must be flatly

rejected. This Court in Mondou v. New York, New Haven &

Hartford Railroad Company, 223 U.S. 1, 32 S.Ct. 169 expressly

held that Congress’s enactment of the FELA was properly bas-

ed upon its authority to regulate interstate commerce, did not

violate equal protection and that state courts had the duty to

entertain suits brought by railroad employees injured in a fur-

therance of interstate commerce. An FELA plaintiff bringing

suit in state court pursuant to 45 U.S.C. §56 is vindicating

federal rights pursuant to specific congressional authorization,

and not any rights created by the state. Baltimore & O.R. Co. v.

Kepner, 314. U.S. 44, 52, 62 S.Ct. 6, 9-10 (1941). As a result, no

state regulation of interstate commerce is in any manner im-

plicated.

|" pe

Secondly, defendant has completely failed to demonstrate

any undue burden on interstate commerce. As noted in

Brotherhood of Locomotive Firemen & Enginemen v. Chicago,

Rock Island & Pacific Railroad Company, 393 U.S. 130, 144, 89

S.Ct. 323, 331 where this Court rejected a defendant’s conten-

tion that the Arkansas full crew laws violated the equal protec-

tion clause, or imposed an undue burden on interstate com-

merce, Stating:

‘‘As we have said many times, Congress unquestionably

has the power under the Commerce Clause to regulate the

number of employees who shall be used to man trains used

in interstate commerce. In the absence of Congressional

action, however, we cannot invoke the judicial power to

invalidate this judgment of the people of Arkansas and

their elected representatives as to the price society should

pay to promote safety in the railroad industry.”’

Moreover, as this Court has recognized a state does in fact have

a legitimate interest in providing a proper remedy for its injured

workers which outweighs the incidental burdens, if any, on in-

terstate commerce. Collins v. American Buslines, Inc., 350 U.S.

§28, 531, 76 S.Ct. 582, 584 (1956). Consequently, even assum-

ing arguendo that state regulation occurred, no undue burden

on interstate commerce has been demonstrated.

In the instant case Congress has exercised its power under the

Commerce Clause by enacting the FELA and authorizing

employees to bring actions for damages in state court. The con-

duct of the instant trial was in complete conformity with the

FELA. Consequently, the state imposed no burden of any type

(and certainly no undue burden) on interstate commerce.

—

CONCLUSION

For all of the foregoing reasons, plaintiff (respondent)

respectfully submits that the judgment of the Missouri Court of

Appeals, below, is entirely correct and that the same does not

warrant review by the court. For that reason, it is further

respectfully submitted and urged that the petition for writ of

certiorari in the instant case should be denied.

Respectfully submitted,

C. Marshall Friedman, MBE 419131

C. Marshall Friedman, P.C.

The Advocate Building

1133 Pine Street

St. Louis, Missouri 63101

(314) 621-2200

Attorneys for Respondent,

Harold E. Anderson