“ The petitioner's evidence was that his immediate superior, a roadmaster, assigned the assailant to petitioner's crew and at the time warned him: 'You will have to watch him because he is a bad actor and a trouble maker. ”

“ The petitioner, a section foreman for respondent railroad, was assaulted by one of his section gang whom he accused of stealing a ballast fork. In this action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., the petitioner was awarded damages by a jury in the Circuit Court of St. Clair County, Illinois. The trial judge set aside the verdict and granted respondent's motion for judgment notwithstanding the verdict. The Appellate Court affirmed, 35 Ill.App.2d 66, 181 N.E.2d 737. Its judgment became final when the Illinois Supreme Court denied petitioner leave to appeal. ”

“ Mr. Justice HARLAN and Mr. Justice STEWART would deny certiorari. See dissenting opinion of Frankfurter, J., and separate opinion of Harlan, J., in Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 524, 559, 77 S.Ct. ”