Opposition Brief — Chance v. Atchison, Topeka & Santa Fe Railway Co.

| Office-Supreme Court, U.S.

FILED

GGT 4° 1965

JOHN F. DAVIS, CLERK

SUPREME COURT OF THE UNITED STATES

¢>y OCTOBER TERM, 1965.

-UkEMG COURT U. &

No. 546)

ya

—

JAMES E. CHANCE,

Petitioner,

~~" ‘THE ATCHISON, TOPEKA AND SANTA FE RAILWAY

COMPANY, a Corporation,

Respondent.

On PETITION For Writ oF CERTIORARI TO THE

SuPREME Court or Missouri.

BRIEF FOR RESPONDENT IN OPPOSITION

Grorce L. GorDon, JR.,

Sam D. PARKER,

Jack W. R. HEADLEY,

Josern E. Srevens, Jr.,

15 West Tenth Street,

Kansas City, Missouri 64105,

: Attorneys aa

Of Counsel:

‘ Laturop, RicuTer, GORDON & PARKER,

Kae Oy ee.

Jurisdiction .......... re RMS eR OE eS TID 2

Questions Presented a alec idait taal lidaintlan 3

Statement . senaclnheadidsabiaeiniadpninsues 4

Argument . ines natiddinpiandideantitdinenabeaniaininanainiinatnaiendinninn 7

I. Procedure: The sole question petitioner pre-

sents is not properly before this Court because it

was never properly raised by petitioner at any

stage of the State Court proceedings .................... 8

II. The Substantive Issue: Instruction No. 7,

neither expressly nor by implication, denies

petitioner any rights under the FELA ................ 10

A. Instruction No. 7 is properly supported by

the evidence, and it properly converses plain-

tiff’s causation theory under Missouri law

permitting converse instructions .................... 11

B. Instruction No. 7 does not raise any issue of

contributory negligence pidikieemiaaaiinibeied 13

IIIS . cecnesiareeisenneishstnaneniniaieianciouniies Snisintinanaahniinieianninacnaniioe 16

TABLE OF CASES

Chance v. The Atchison, Topeka and Santa Fe Railway

Co. (Mo., 1965), 389 S.W.2d 774 1,9, 10, 15

Citizen’s Bank v. Opperman, 39 S. Ct. 330, 249 U.S. 448 2

Edelman v. California (1953), 344 U.S. 357 —...000020....... 9

Green v. Elbert, 11 S. Ct. 188, 137 U.S. 615 0... 2

Hulbert v. Chicago (1906), 202 U.S. 275 20000... 9

In re Lamkin (1957), 355 U.S. 59 une eeeeecenee cence es 9

Liebow v. Jones Store Co. (1957), 303 S.W.2d 660, 662 11

Samuels v. Klimowicz (Mo., 1964), 380 S.W.2d 418, 424 13

II INDEX

OTHER AUTHORITIES

Missouri Rule of Civil Procedure 79.03 ..................-.-------- 3, 8

Missouri Rule of Civil Procedure 83.05(a) .................... 3,8

31 Penn. Bar Ass. Q. 393, 399-400 (1960) 9

Rules 21 and 22 of the Supreme Court 2

Rule 23(1) (£) of the Supreme Court 9

Rule 23(h) of the Supreme Court 11

2 USC, Seo 1357 ......-- - 2

28 U.S.C., Sec. 2101 (e) ......... " 2

45 U.S.C., Sec. 53 snccesilly ¥y Oy a OO

> <n emennenemmnetet cen AGL eR? erate ne

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965.

No. 546

JAMES E. CHANCE,

Petitioner,

vs.

THE ATCHISON, TOPEKA AND SANTA FE RAILWAY

COMPANY, a Corporation,

Respondent.

On PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME Court oF MISSOURI.

BRIEF FOR RESPONDENT IN OPPOSITION

This brief is filed on behalf of The Atchison, Topeka

and Santa Fe Railway Company, Respondent, in opposi-

tion to Petition of James E. Chance for writ of certiorari

to the Supreme Court of the State of Missouri to review

the judgment of said court, entered April 12, 1965, affirm-

ing the unanimous jury verdict and judgment thereon for

this respondent in the Circuit Court of Jackson County,

Missouri, at Kansas City. Petitioner’s motion for rehear-

ing or transfer to the Missouri Supreme Court, en banc,

was overruled on May 10, 1965. Chance v. The Atchison, Z ‘

ga and Santa Fe Railway Co. (Mo., 1965), 389 S.W.2d ~

774.

_-_————

JURISDICTION

Petitioner claims jurisdiction of this Court is invoked

by virtue of the certiorari provisions of 28 U.S.C., Sec.

1257.

Respondent objects to the jurisdiction of this Court to

grant a writ of certiorari because Petitioner has failed to

comply with Section 2101(c) of Title 28 U.S.C., and Peti-

tioner has failed to comply with Rules 21 and 22 of this

Court.

I. Failure to Comply with Section 2101(c) of Title 28

U.S.C.

The petition states (p. 2) that the judgment of the

Supreme Court of Missouri was entered on April 15, 1963,

and a motion for rehearing was denied May 10, 1965. 28

U.S.C. 2101(c) provides that a writ of certiorari shall be

applied for within ninety days after the entry of the judg-

ment. The ninety-day period after May 10, 1965, expired

August 8, 1965, and during this period petitioner did not

apply for the writ. This Court cannot, therefore, issue

such a writ. Citizen’s Bank v. Opperman, 39 S. Ct. 330,

249 U.S. 448. >

Neither was the case docketed within the ninety day

period, and this again is fatal. Green v. Elbert, 11 S. Ct.

188, 137 U.S. 615. ,

II. Failure to Comply with Rules 21 and 22 of this

Court.

Rules 21(1) and 22(3) require the filing of a petition

and certified transcript of the record within the time pre-

scribed by law.

3

Respondent is informed and believes that the petition

in this cause was not filed until August 10, 1965, and that

the certified transcript of the record (nor any part thereof)

was not filed until September 8, 1965. Respondent is fur-

ther informed and believes that the cause was not docketed

until September 8, 1965, well beyond the ninety-day limi-

tation of the statute and the rules.

Since petitioner has failed to comply with the ap-

plicable statute and rules, this Court has no jurisdiction

and this petition should be dismissed or denied. However,

we will demonstrate that in no case should a writ be issued.

QUESTIONS PRESENTED

As to Procedure: Should this Court now consider the

sole question raised by petitioner (that a jury instruction

improperly injected contributory negligence as a com-

plete bar to recovery) when petitioner failed to raise such

question at the time the jury instruction was given by

the trial court (1094), failed to raise such question in

his assignment of errors in his motion for new trial filed

in the trial court (T. 1104-08), as required by Missouri

Rule of Civil Procedure 79.03, and failed to raise such

question in “Points Relied On” in his brief to the Missouri

Supreme Court (page A 32, Petition), as required by Mis-

souri Rule of Civil Procedure 83.05(a).

As to the Substantive Issue: Whether a jury instruc-

tion conversing petitioner’s sole theory of causation im-

properly injected contributory negligence as a complete

bar to petitioner’s recovery and in — of 45 U.SC.,

Sec. 53?

STATEMENT

Because petitioner’s statement of facts fails to tell this

Court what petitioner’s theory of negligence was at trial,

and because the statement is otherwise incomplete, defend-

ant makes this additional statement of the case and facts

material to a consideration of the questions presented.

Petitioner testified that on June 19, 1960, he was stand-

ing between track 55 and track 56 on a curve in respond-

ent’s bowl yard when a car or cars coupled into two stand-

ing coupled hopper cars on track 55 causing one of these

standing hopper cars to jump out sideways 8 inches or so

and hit him causing him injuries (T. 149, 150, 296, 297).

Petitioner further stated that any time you put pressure

on a String of cars there is a side swing to cars, and if it’s

on a curve, they will swing either way, about 8 or 10 inches

or approximately a foot of side swing. It all depends on

how much pressure there is on the cars (T. 290).

Petitioner’s sole theory of negligence submitted to the

jury was that the moving car or cars coupled into the stand-

ing hopper cars at a speed in excess of the 4 miles per hour .

allowed by respondent’s work rules, and that such exces-

sive speed caused the injury. Petitioner’s verdict-directing

instruction given by the trial court reads as follows:

“Instruction No. 1

“The court instructs the jury that if you find and

believe from the evidence that the plaintiff, Jim

Chance, was in the employ of the defendant on June

19, 1960, and that on that day he was working as a

switchman handling freight cars in the Bowl Yard of

the defendant at the Argentine Yards in Kansas City,

Kansas, and was working below and West of the so-

™\.., called hump, and that as a part of his regular duties

4)

he was in a position on the curve between track 55

and track 56 and West cf the 42nd Street Viaduct and

that he was then and there violently struck by a hopper

car standing on track 55 when it was struck by a car

or cars which defendant had caused and permitted to

roll off the hump Westward on track 55 at a speed in

excess of that allowed by the defendant’s rules to-wit

four (4) miles per hour, and at an excessive and dan-

gerous rate of speed, and if you further find that, in

so causing and permitting said car or cars to roll at

such speed off the hump on track 55 and to strike the

hopper car standing on track 55, the defendant failed

to exercise ordinary care and was negligent and that

plaintiff was injured as a direct and proximate result

of said negligence, then your verdict must be in favor

of the plaintiff and against the defendant.” (T. 1094-

95).

Petitioner did not see the moving cars which coupled

into the standing hopper cars (T. 300). Nor did he see the

standing hopper car “swing out” and hit him (T. 297. 299).

No one testified for petitioner, other than petitioner him-

self, that standing cars swing out in such fashion when

moving cars couple into them.

Several witnesses for respondent testified that railroad

cars, including hopper cars, do not swing out, sway out or

jump out as much as 8 to 10 inches or a foot during a cou-

pling of these cars coming off the hump, whether on straight

or curved track (T. 747, 752, 756-757, 821-822, 835-836, 905-

906, 922-923, 1049). Further, witnesses for respondent ex-

plained why, because of the manner of car construction and

close clearance problems in railroading, it was impossible

and impracticable for cars to have such lateral or sideways

movement (T. 1049-1051, 755, 757). The maximum lateral

movement of these cars is about 2 inches at most, and if

they moved sideways or swung out as much as 8 inches

they would derail (T. 822, 752-753, 907).

6

The two hopper cars standing on track 55 at the time

in question were loaded with sand weighing about 75 tons

each (T. 771, 773). The other car was loaded with flour

weighing about 55 to 60 tons (T. 775-776). A loaded car

coming down off the hump and coupling into these two

standing hopper cars at a speed of 4 miles per hour, with

a skate on the far end of the hopper cars, would cause the

hopper cars to move at least a half car length or about 20

to 25 feet (T. 777).

Adjoining sets of railroad tracks on a curve are placed

farther apart than adjoining sets of track on straight-a-way

(T. 784). Measurements show that at the curve between

tracks 55 and 56 the distance between tracks is wider than

at other points (T. 813-814).

Petitioner told respondent’s safety supervisor Storey.

on the same day the accident occurred, that “he was stand-

ing at the coupler opening on track 55 between two hopper

cars, and that a car came down off the hump and struck

these cars, and he was hit by one of the cars on the right

side, and that it threw him over into the cars on 56 track”

(T. 834). If you stand on a track where there are two

hopper cars on that same track, and if you are standing

on that track at the coupler opening, you are in a position

where you will be struck if the cars are moved (T. 851-

852).

The petitioner previously sued this respondent claim-

ing total permanent disability as the result of an accident

on June 24, 1951. This case went to trial in May, 1952,

and petitioner was awarded $20,000 damages by a jury

based on petitioner’s testimony that he would never be

able to work again as a switchman as well as the testimony

of his doctors who stated he would never be able to work

again (T. 333-335, 345-346). In August, 1952, a little over

two months after the said jury verdict, and after the judg-

7

ment entered thereon was paid to petitioner, petitioner

filed a written bump with respondent demanding that he

be put back to work as a switchman stating that he was

ready, willing and able to work (T. 1041-1042, 1036-1037,

346-347). In May of 1956, the Labor Board ordered that

Chance be reinstated and put back to work (T. 1044).

ARGUMENT

The petition, to say the least, is unusual in that it

presents a question never properly raised in the Missouri

Court system.

We recognize that this Court is not prone to decide

cases on procedure if great and substantial questions on

the merits are involved. However, the question presented

by the petition, when analyzed, does not present a novel

or substantial question, or one in conflict with applicable

decisions of this Court. Instead, it simply asks the Court

to take a look at a Missouri jury instruction to see if this

Court agrees with the Missouri Court on a theory that

petitioner never properly presented to, but which was

decided by, the Missouri Court, to wit: whether the jury

instruction in question submits plaintiff’s contributory neg-

ligence as a bar to his recovery and therefore conflicts

with 45 U.S.C., Sec. 53.

This Court has repeatedly held that certiorari may

not be used by a defeated litigant merely for the purpose

of securing a second appellate review of his case.

8

I. Procedure: The sole question petitioner presents

is not properly before this Court because it was never prop-

erly raised by petitioner at any stage of the State Court

proceedings.

Petitioner now claims Jury Instruction No. 7 im-

properly injected contributory negligence as a complete

bar to recovery and in violation of 45 US.C., Sec. 53.

Petitioner did not make such objection at the time

the trial court gave Instruction No. 7 (T. 1094).

Petitioner did not make such objection or preserve

such point in his motion for new trial before the trial

court (T. 1104-08). This in violation of Missouri Civil

Rule of Procedure 79.03 requiring that allegations of error

and specific objections to instructions be made in the mo-

tion for new trial to preserve error for appellate review,

and which Rule reads, in part, as follows: \

“79.03 Motion for New Trial—Allegations of Error

Required

Allegations of error, in order to be preserved for

appellate review, must be presented to the trial court

in a motion for a new trial; * * * If any specific ob-

jections to instruction have not been made at the trial

before submission to the jury, then such specific alle-

gations of error in instructions must be set forth in

the motion for new trial to preserve the error for re-

view.”

Nor did petitioner, in his brief to the Missouri Su-

preme Court, follow Missouri Rule 83.05(a) by raising

such question in his “Points Relied On” (page A32, Peti-

tion). Petitioner did, parenthetically, inject the ques-

tion in one sentence of a paragraph in the Argument por-

tion of his brief (page A32, Petition).

The Missouri Supreme Court did not rest its opinion

on the fact petitioner failed to present properly the present

9

question for review. Instead, it considered the question

and rejected petitioner’s contention. 289 S.W. 2d 774,

778, 779.

The procedural principles established by this Court

seem clear that the litigant must follow state procedures

in raising the federal question, and any failure to do so

should prove fatal to his chances for Supreme Court re-

view. In re Lamkin (1957), 355 U.S. 59. Also see Hulbert

v. Chicago (1906), 202 U.S. 275 (complete failure to raise

question at trial court level); Edelman v. California (1953),

344 U.S. 357 (failure to raise issue at trial).

Perhaps the principle is best stated by the late Mr.

Justice Brennan in an article entitled State Court Deci-

sions and the Supreme Court, 31 Penn. Bar Assn. Q. 393,

399-400 (1960), as follows:

“But the fact that a federal question lurks in the case

doesn’t mean, standing alone, that a state decision

will. be reviewed. First, the federal question must be

a substantial question. Second, the federal question

must have been properly raised in the state courts.

This is required because the state courts must first be

afforded an opportunity to consider and decide the

federal question. Third, even then we may not take

the case if the state court’s judgment can be sustained

on an independent ground of state law.”

Actually petitioner has been changing his theory of

attack as he has progressed through the various courts.

This becomes clear when analyzing the effort in the peti-

tion to state where the question had been raised below.

The petition obviously fails, and understandably so,

to follow Rule 23 (1)(f) of this Court that one seeking

review of a state court decision must “specify the stage

in the proceedings in the court of first instance and in the

10

appellate court, at which, and the manner in which, the

federal questions sought to be reviewed were raised; * * *”

For the above reasons alone, certiorari should be de-

nied.

II. The Substantive Issue: Instruction No. 7, neither

expressly nor by implication, denies petitioner any rights

under the FELA.

The petition is asking this Court to do all the work!

It fails to give this Court any specifics—it simply makes

sweeping charges, without reason or explanation, that:

(1) The Missouri Supreme Court failed to follow the

F.E.L.A.;

(2) The Missouri Supreme Court, by approving In-

struction No. 7, denied petitioner federal rights;

(3) The decision of the Missouri Supreme Court

frustrates the intent of Congress; and

(4) The Missouri Supreme Court treats with a fed-

eral question not heretofore determined by this Court (pp.

5 and 6, Petition).

The above is the sum total of petitioner’s argument

and reasons why certiorari should be granted. Not once

(in any of the four points enumerated) does he say “why”

or “how”. Nor does petitioner’s inclusion of a portion of

his brief to the Missouri court in the appendix to the

petition (page A32, et seq.) provide any answer. In fact,

the opinion of the Missouri court goes to some length

treating with petitioner’s complaint that Instruction No. 7

did not require a finding that plaintiff was contributorily

negligent. 389 S.W.2d 774, 778-9. Now petitioner com-

plains to this Court that it did!

If petitioner wishes to take the time to present to

this court a question that Instruction No. 7 improperly in-

11

jects contributory negligence as a complete bar, why doesn’t

he tell us how this is so?

It would seem that by dangling the question before

this Court, without explanation, petitioner would hope to

invoke the Court’s imagination in a “guessifig game” as

to what petitioner has in mind, and thus perhaps strike on

an idea novel even to petitioner. Either this is so or pe-

titioner has forgotten Rule 23(h) calling for an argument

amplifying the reasons relied on for allowing the writ.

Although petitioner says the opinion of the Missouri

Supreme Court, in approving Instruction No. 7, is wrong,

he refuses to discuss it further or point out why it is

wrong. Nonethele-s, we are constrained to make the fol-

lowing argument on why Instruction No. 7 properly fol-

lowed Missouri law and was not in violation of federal law.

A. Instruction No. 7 is properly supported by the evi-

dence, and it properly converses plaintiff’s causation theory

under Missouri law permitting converse instructions.

At this point we believe it is necessarily in order to

explain just what Instruction No. 7 is and how it follows

Missouri procedure permitting a defendant to converse

any element essential to a recovery by plaintiff.

Instruction No. 7 is in the nature of a converse in-

struction on “excessive speed” which was the sole basis for

negligence and causation submitted to the jury by plain-

tiff’s Instruction No. 1. In effect, Instruction No. 7 con-

verses causation since it asks the jury to find for defend-

ant if they do not believe plaintiff sustained damage as a

direct result of “excessive speed”.

The Missouri Supreme Court, in explaining permis-

sible converse instructions, stated in Liebow v. Jones Store

Co., (1957) 303 S.W.2d 660, 662:

12

>

“There is no set form for what is referred to as a con-

verse instruction. The defendant can submit either

the exact converse of plaintiff’s verdict-directing in-

struction, Janssens V. Thompson, 360 Mo. 351, 228

S.W.2d 743, or the exact converse of any essential ele-

ment of such instruction. Reger v. Nowotny, Mo.

Sup. 226 S.W.2d 596; McCarty v. Milgram Food Stores,

Inc., Mo. Sup. 252 S.W.2d 343; Oshins v. St. Louis Pub-

lic Services Co., Mo. Sup. 254 S.W.2d 630. When either

is done the result is what is referred to as a ‘true con-

verse instruction’ and such an instruction does not re-

quire affirmative testimony in support of it. Kim-

brough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461, 464.

However, the defendant may also submit facts in an

instruction, the existence of which would disprove,

that is controvert, one or more of the essential factual

elements of plaintiff’s case. See Rose v. St. Louis Pub-

lic Service Co., Mo. Sup. 205 S.W.2d 559. This form of

an instruction also is sometimes referred to as a con-

verse instruction. * * *”.

Respondent submits that the evidence affirmatively dis-

closes not only that Chance was standing in a three-foot

- space on Track 55 between the coupled hopper cars at the

time the car traveling off the hump coupled into the hop-

per cars, but that even at a coupling speed of four miles

per hour these 75 ton hopper cars would move 20 to 25

feet—more than enough to travel the three foot open space

between the ends of the coupled hopper cars. Certainly

this is sufficient evidence for the jury to find that plain-

tiff would have been “so struck and injured” even though

the speed of the car was not in excess of four miles per

hour. This was the main finding requested by Instruction

No. 7, and no mention of contributory negligence is made.

In addition, it was plaintiff’s attorney, not defendant’s,

who opened up the question of a Rule N violation by ask-

ing for and receiving the opinion of defendant’s witness

13

Becker that Chance violated such rule (T. 779). However,

more significantly, witness Becker explained that the only

way a person could get hit down there during a coupling

would be if he were standing “afoul” the track or between

the couplers where the car would have to hit him (T. 799-

800). This because these cars simply don’t jump or swing

sideways eight inches to a foot as Chance asked the jury

to believe.

The evidence was abundant to support the defense

that cars do not jump sideways, and, therefore, petitioner

simply was in a position where he would have been so

struck and injured whether the car coming off the hump

and coupling onto the standing cars was traveling four

miles per hour or over four miles per hour. Since plain-

tiff’s Instruction No. 1 gave the jury a roving commission

to find that a speed in excess of four miles per hour was

negligence which in some way caused plaintiff's injuries,

defendant’s Instruction No. 7 simply submits a converse

situation permitting the jury to find for defendant if plain-

tiff would have been so struck and injured at the “non-

negligent” speed of four miles per hour.

Where the jury verdict is for defendant, as here, the

evidence supporting an accused jury instruction is viewed,

on appeal, in a light most favorable to defendant. Samuels

v. Klimowicz, (Mo., 1964) 380 S.W.2d 418, 424.

B. Instruction No. 7 does not raise any issue of contribu-

tory negligence,

A reading of Instruction No. 7 discloses that the Mis-

souri Court *was right when it held that the instruction

does not submit contributory negligence. Plaintiff's neg-

ligence is not even mentioned!

Instruction No. 7 does nothing more than to say that

if the jury found defendant was negligent as defined in

14

Instruction No. 1 (coupling speed of car in excess of 4

miles per hour), then plaintiff cannot recover if the jury

finds that he would have sustained the same injury if

defendant had not been so negligent.

It should be emphasized here that in Instruction No.

2, petitioner, not respondent, submitted to the jury the

question of his own contributory negligence and the re-

lated principles of 45 U.S.C., Sec. 53 (T. 1095-96).

The jury had to find one of two things: Either (1)

that defendant was not negligent, or (2) that the negli-

gence was immaterial because plaintiff put himself in the

position where he would have sustained the same injury

if defendant had not been negligent.

Certain negligence principles are axiomatic and need

no supporting authority. For example, one may be negli-

gent and not liable. Only when it is shown that the neg-

ligence was a proximate cause of the injury does the neg-

ligence become actionable. The word “causal” is not syn-

onymous with the word “contribute”. Causation is that

act which produces injury and without which the injury

would not have occurred. Instruction No. 7 is a correct

converse instruction on the claimed causation in this case

—excessive speed.

Although we are at a disadvantage because the peti-

tion makes no effort to explain the claimed error, appar-

ently petitioner is confusing the above principles of ac-

tionable negligence and causation with principles of con-

tributory negligence.

Instruction No. 7 permits the jury to find that the

negligence (excessive speed) was not actionable if plain- ©

tiff would have been “so struck and injured” at a non-neg-

ligent coupling speed of 4 miles per hour. Petitioner seem-

ingly would argue that this speaks of contributory neg-

15

ligence. Not so! It is conversing petitioner’s sole theory

of causation of the injury.

Let us assume that a train is moving at 10 miles per

hour, which is a proper speed, but that if it had been

moving at 50 miles per hour, such speed would have been

excessive and negligent. Assume further that a person

puts himself on the track in front of the train so that he

is run over and gets his leg cut off and that he would have

been so injured by a train going either 10 or 50 miles

per hour. What difference does it make if the train is

going 10 miles an hour or 50 miles an hour? The negli-

gence is simply not the cause of the injury.

This is not a question of the defendant being negli-

gent and plaintiff being contributorily negligent, as peti-

tioner seems to think. It is a situation where either the

jury found that defendant was not negligent (Instruction

No. 1), or it found that the defendant’s negligence, if any,

did not cause or contribute to cause plaintiff’s injuries

(Instruction No. 7).

Aside from foregoing reasons, we conclude with the

express language in the opinion of the Missouri Supreme

Court, which opinion petitioner fails to answer or to dis-

cuss, that Instruction No. 7:

“does not submit any acts of the plaintiff as constitut-

ing negligence and it does not authorize a finding for

defendant on the basis of contributory negligence”

(389 S.W. 2d 774, 779).

Perhaps we have dwelt too long and have been guilty

of some repetition in our defense of Instruction No. 7.

If so, it is because plaintiffs charges of error are so gen-

eralized and sweeping in nature, without giving us or

the Court anything specific.

16

CONCLUSION

Petitioner fails to show that the Missouri Court failed

to follow Section 53 of 45 U.S.C., or any other section

thereof, or that by approving Instruction No. 7, the Missouri

Court denied any rights granted to petitioner by Congress,

or that the Missouri Court frustrated any purpose or in-

tent of Congress, or that there is any question of sub-

stance, federal or otherwise, in issue. The facts and the

law demonstrate that the converse is true.

In essence, no substantial federal question, if one at

all, has been presented. Again, the Petition should be

denied.

Respectfully submitted,

GEeEorGE L. GORDON, JR.,

Sam D. PARKER,

JacK W. R. HEADLEY,

JOSEPH E. STEVENS, JR.,

15 West Tenth Street,

Kansas City, Missouri 64105,

Attorneys for Respondent.

Of Counsel:

LATHROP, RIGHTER, GORDON & PARKER,

15 West Tenth Street,

Kansas City, Missouri 64105.

a,

ge”