harris v. pennsylvania r. co., 361 u.s. 15 (1959)

8/17/2019 Harris v. Pennsylvania R. Co., 361 U.S. 15 (1959)

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361 U.S. 15

80 S.Ct. 22

4 L.Ed.2d 1

Henry J. HARRIS, Petitioner,

v.PENNSYLVANIA RAILROAD CO.

No. 81.

Decided Oct. 19, 1959.

Mr. Marshall I. Nurenberg, for petitioner.

Mr. Edwin Knachel, for respondent.

PER CURIAM.

1 The petition for writ of certiorari is granted. The judgment of the Supreme

Court of Ohio is reversed and the case is remanded for proceedings inconformity with this opinion. We hold that the proofs justified with reason the

jury's conclusion, embodied in answers to Interrogatories to Jury numbers I and

II, that employer negligence played a part in producing the petitioner's injury.

Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.

See also Moore v. Terminal Railroad Ass'n, 358 U.S. 31, 79 S.Ct. 2, 3 L.Ed.2d

25, and cases cited therein. We therefore find it unnecessary to consider the

petitioner's challenge to the Ohio procedure governing interrogatories to the

jury.

2 For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co.,

352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, Mr. Justice

FRANKFURTER is of the view that the writ of certiorari is improvidently

granted.

3 Reversed and remanded with directions.

4 Mr. Justice STEWART took no part in the consideration or decision of this

case.



5 (For dissenting opinion of Mr. Justice HARLAN, joined by Mr. Justice

WHITTAKER, see 80 S.Ct. 29.)

6 Mr. Justice DOUGLAS, concurring.

7 The suggestion that this and related decisions mean that we have eliminated 'all

meaningful judicial supervision over jury verdicts' in FELA, 45 U.S.C.A. § 51

et seq., cases prompts me to file this opinion and bring up to date the

compilation which I made in Wilkerson v. McCarthy, 336 U.S. 53, 68, 71—73,

69 S.Ct. 413 ,420, 422—423, 93 L.Ed. 497. The Wilkerson case was decided

January 31, 1949. The attached Appendix presents a statistical summary1 of our

stewardship of these FELA cases from that date to October 19, 1959.

8 Of the 110 petitions for certiorari filed during this period of more than 10years, 73 were filed by employees and 37 were filed by employers. Of these, 33

were granted, each at the instance of an employee who complained of the lower

court's withholding the case from the jury or overturning a jury verdict in his

favor. Thirty cases were reversed for usurpation of the jury function; and in

each of three the lower court's decision was sustained.

9 Of the 77 petitions denied, 32 were by employees who sought reversal of a

lower court's decision to withhold the case from the jury or to upset a jury'sverdict. Eight more employees wanted this Court to overturn jury verdicts

rendered in the employers' favor.

10 Of the petitions filed by employers, 35 asked this Court to reverse a lower court

decision upholding a jury verdict or holding that the case should have been

submitted to a jury. Employers in two other petitions complained of the lower

court's action in setting aside a jury verdict and granting a new trial.

11 It is apparent from the decisions where we refused to review cases in which

lower courts withheld cases from the jury or set aside jury verdicts (or where,

having granted certiorari, we sustained the lower courts in that action) that the

system of judicial supervision still exists in this as in other types of cases.

12 It is suggested that the Court has consumed too much of its time in reviewing

these FELA cases. An examination of the 33 cases in which the Court has

granted certiorari during the period of over 10 years covered by the attachedAppendix reveals that 16 of these cases were summarily reversed without oral

argument and without full opinions. Only 17 cases were argued during this

period of more than a decade and, of these, 5 were disposed of by brief per



curiam opinions. Only 12 cases in over 10 years were argued, briefed and

disposed of with full opinions by the Court. We have granted certiorari in these

cases on an average of less than 3 per year and have given plenary

consideration to slightly more than 1 per year. Wastage of our time is therefore

a false issue.

13 The difference between the majority and minority of the Court in our treatmentof FELA cases concerns the degree of vigilance we should exercise in

safeguarding the jury trial—guaranteed by the Seventh Amendment and part

and parcel of the remedy under this Federal Act when suit is brought in state

courts. See Bailey v. Central Vermont R. Co., 319 U.S. 350, 354, 63 S.Ct.

1062, 1065, 87 L.Ed. 1444; Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 363,

72 S.Ct. 312, 315, 96 L.Ed. 398. Whether that right has been impaired in a

particular instance often produces a contrariety of views. Yet the practice of the

Court in allowing four out of nine votes to control the certiorari docket is wellestablished and of long duration.2 Without it, the vast discretion which

Congress allowed us in granting or denying certiorari might not be tolerable.

Every member of the Court has known instances where he has strongly

protested the action of the minority in bringing a case or type of case here for

adjudication. He may then feel that there are more important and pressing

matters to which the Court should give its attention. That is, however, a price

we pay for keeping our promise to Congress3 to let the vote of four Justices

bring up any case here on certiorari. hearings and not secure a decision by thewhole court, it is proper to call attention to the very thorough and complete

system by which discretionary jurisdiction is exercised. In granting or refusing a

prayer for a certiorari the petitioner gets the judgment of the whole court. The

application is not disposed of by a single justice. The luminous and informing

statement of Mr. Justice Van Devanter tells the whole story:

14 "While the authority of the Supreme Court to take cases on petition for

certiorari is spoken of as a discretionary jurisdiction, this does not mean that thecourt is authorized merely to exercise a will in the matter but rather that the

petition is to be granted or denied according to a sound judicial discretion.

What actually is done may well be stated here with some particularity. The

party aggrieved by the decision of the circuit court of appeals and seeking a

further review in the Supreme Court is required to present to it a petition and

accompanying brief, setting forth the nature of the case, what questions are

involved, how they were decided in the circuit court of appeals, and why the

case should not rest on the decision of that court. The petition and brief arerequired to be served on the other party, and time is given for the presentation

of an opposing brief. When this has been done copies of the printed record as it

came from the circuit court of appeals and of the petition and briefs are



distributed among the members of the Supreme Court, and each judge

examines them and prepares a memorandum or note indicating his view of what

should be done.

15 "In conference these cases are called, each in its turn, and each judge states his

views in extenso or briefly as he thinks proper; and when all have spoken any

difference in opinion is discussed and then a vote is taken. I explain this atsome length because it seems to be thought outside that the cases are referred to

particular judges, as, for instance, that those coming from a particular circuit

are referred to the justice assigned to that circuit, and that he reports on them,

and the others accept his report. That impression is wholly at variance with

what actually occurs.

16 "We do not grant or deny these petitions merely according to a majority vote.

We always grant the petition when as many as four think that it should begranted and sometimes when as many as three think that way. We proceed

upon the theory that, if that number out of the nine are impressed with the

thought that the case is one that ought to be heard and decided by us, the

petition should be granted." H.R.Rep. No. 1075, 68th Cong., 2d Sess., p. 3.

17 Appendix to Opinion of Mr. Justice DOUGLAS.

18 I. Cases in Which Certiorari Was Granted.

19 A. Where lower court which withheld the case from the jury or set aside a jury

verdict for the employee and ordered a new trial or rendered judgment for the

employer was reversed:

20 Hill v. Atlantic Coast Line R. Co., 336 U.S. 911, 69 S.Ct. 507, 93 L.Ed. 1075.

21 Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282.

22 Brown v. Western R. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100.

23 Carter v. Atlanta & St. Andrews Bay R. Co., 338 U.S. 430, 70 S.Ct. 226, 94

L.Ed. 236.

24 Stone v. New York, Chicago & St. Louis R. Co., 344 U.S. 407, 73 S.Ct. 358, 97

L.Ed. 441.



25 Harsh v. Illinois Terminal R. Co., 348 U.S. 940, 75 S.Ct. 362, 99 L.Ed. 736.

26 Smalls v. Atlantic Coast Line R. Co., 348 U.S. 946, 75 S.Ct. 439, 99 L.Ed. 740.

27 O'Neill v. Baltimore & Ohio R. Co., 348 U.S. 956, 75 S.Ct. 447, 99 L.ed. 747.

28 Neese v. Southern R. Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60.

29 Anderson v. Atlantic Coast Line R. Co., 350 U.S. 807, 76 S.Ct. 60, 100 L.Ed.

725.

30 Strickland v. Seaboard Air Line R. Co., 350 U.S. 893, 76 S.Ct. 157, 100 L.Ed.

786.

31 Cahill v. New York, N.H. & H.R. Co., 350 U.S. 898, 351 U.S. 183.

32 Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.

33 Webb v. Illinois Central R. Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503.

34 Arnold v. Panhandle & Santa Fe R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d

889.

35 Futrelle v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 682, 1 L.Ed.2d

718.

36 Shaw v. Atlantic Coast Line R. Co. et al., 353 U.S. 920, 77 S.Ct. 680, 1

L.Ed.2d 718.

37 Deen v. Gulf, Colorado & Santa Fe R. Co., 353 U.S. 925, 77 S.Ct. 715, 1

L.Ed.2d 721.

38 Thomson v. Texas & Pacific R. Co., 353 U.S. 926, 77 S.Ct. 698, 1 L.ed.2d 722.

39 McBride v. Toledo Terminal R. Co., 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d

1534.

40 Ringhiser v. Chesapeake & Ohio R. Co., 354 U.S. 901, 77 S.Ct. 1093, 1



L.Ed.2d 1268.

41 Gibson v. Thompson, 355 U.S. 18, 78 S.Ct. 2, 2 L.Ed.2d 1.

42 Stinson v. Atlantic Coast Line R. Co., 355 U.S. 62, 78 S.Ct. 136, 2 L.Ed.2d 93.

43 Honeycutt v. Wabash R. Co., 355 U.S. 424, 78 S.Ct. 393, 2 L.Ed.2d 380.

44 Ferguson v. St. Louis-San Francisco R. Co., 356 U.S. 41, 78 S.Ct. 671, 2

L.Ed.2d 571.

45 Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799.

46 Moore v. Terminal R. Assn., 358 U.S. 31, 79 S.Ct. 2, 3 L.Ed.2d 25.

47 Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 765.

48 Conner v. Butler, 361 U.S. 29, 80 S.Ct. 21.

49 Harris v. Pennsylvania R. Co., 361 U.S. 15, 80 S.Ct. 22.

50 B. Where lower court which withheld the case from the jury or set aside a jury

verdict for the employee and ordered a new trial or rendered judgment for the

employer was sustained:

51 Reynolds v. Atlantic Coast Line R. Co., 336 U.S. 207, 69 S.Ct. 507, 93 L.Ed.

618.

52 Moore v. Chesapeake & Ohio R. Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed.

547.

53 Herdman v. Pennsylvania R. Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508.

54 II. Cases in Which Certiorari Was Denied.

55 A. Where lower court withheld case from the jury or overturned a jury verdictfor employee and rendered judgment for the employer:

56 Scocozza v. Erie R. Co. 337 U.S. 907 69 S.Ct. 1048 93 L.Ed. 1719.



57 Killian v. Pennsylvania R. Co., 338 U.S. 819, 70 S.Ct. 63, 94 L.Ed. 497.

58 Lavender v. Illinois Central R. Co., 338 U.S. 822, 70 S.Ct. 67, 94 L.Ed. 499.

59 Roberts v. Alabama Great Southern R. Co., 340 U.S. 829, 71 S.Ct. 66, 95 L.Ed.609.

60 Emmick v. Baltimore & Ohio R. Co., 340 U.S. 831, 71 S.Ct. 43, 95 L.Ed. 611.

61 Roberts v. Missouri-Kansas-Texas R. Co., 340 U.S. 832, 71 S.Ct. 54, 95 L.Ed.

611.

62 Gentry v. Seaboard Air Line R. Co., 340 U.S. 853, 71 S.Ct. 82, 95 L.Ed. 625.

63 Moleton v. Union Pacific R. Co., 340 U.S. 932, 71 S.Ct. 495, 95 L.Ed. 672.

64 Healy v. Pennsylvania R. Co., 340 U.S. 935, 71 S.Ct. 490, 95 L.Ed. 674.

65 Ottley v. St. Louis-San Francisco R. Co., 340 U.S. 948, 71 S.Ct. 533, 95 L.Ed.

683.

66 Craven v. Atlantic Coast Line R. Co., 340 U.S. 952, 71 S.Ct. 571, 95 L.Ed. 686.

67 Jaroszewski v. Central R. Co., 344 U.S. 839, 73 S.Ct. 26, 97 L.Ed. 653.

68 Creamer v. Ogden Union R. & Depot Co., 344 U.S. 912, 73 S.Ct. 333, 97 L.Ed.

703.

69 Frizzell v. Wabash R. Co., 344 U.S. 934, 73 S.Ct. 505, 97 L.Ed. 718.

70 Gill v. Pennsylvania R. Co., 346 U.S. 816, 74 S.Ct. 27, 98 L.Ed. 343.

71 Smith v. Baltimore & Ohio R. Co., 346 U.S. 838, 74 S.Ct. 61, 98 L.Ed. 360.

72 Wetherbee v. Elgin, Joliet & Eastern R. Co., 346 U.S. 867, 74 S.Ct. 104, 98

L.Ed. 378.



73 Shellhammer v. Lehigh Valley R. Co., 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed.

1124.

74 Keiper v. Northwestern Pacific R. Co., 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed.

826.

75 Click v. Jacksonville Terminal Co., 350 U.S. 994, 76 S.Ct. 543, 100 L.Ed. 859.

76 Barnett v. Terminal R. Assn. of St. Louis, 351 U.S. 953, 76 S.Ct. 850, 100

L.Ed. 1476.

77 Lupo v. Norfolk & Western R. Co., 352 U.S. 891, 77 S.Ct. 128, 1 L.Ed.2d 86.

78 Collins v. Atlantic Coast Line R. Co., 352 U.S. 942, 77 S.Ct. 265, 1 L.Ed.2d

238.

79 Bennett v. Southern R. Co., 353 U.S. 958, 77 S.Ct. 865, 1 L.Ed.2d 909.

80 Kelly v. Pennsylvania R. Co., 355 U.S. 892, 78 S.Ct. 265, 2 L.Ed.2d 190.

81 Dessi v. Pennsylvania R. Co., 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1073.

82 Baum v. Baltimore & Ohio R. Co., 358 U.S. 881, 79 S.Ct.

83 B. Where lower court sustained a jury verdict for the employer:

84 Jones v. Illinois Terminal R. Co., 347 U.S. 956, 74 S.Ct. 682, 98 L.Ed. 1101.

85 Conser v. Atchison, Topeka & Santa Fe R. Co., 348 U.S. 828, 75 S.Ct. 45, 99

L.Ed. 653.

86 Metrakos v. Cleveland Union Terminals Co., 348 U.S. 872, 75 S.Ct. 107, 99

L.Ed. 686.

87 Kane v. Chicago, Burlington & Quincy R. Corp., 348 U.S. 943, 75 S.Ct. 365,

99 L.Ed. 738.

88 Daulton v. Southern Pacific Co., 352 U.S. 1005, 77 S.Ct. 564, 1 L.Ed.2d 549.



89 Burch v. Reading Co., 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914.

90 Brinkley v. Pennsylvania R. Co., 358 U.S. 865, 79 S.Ct. 94, 3 L.Ed.2d 97.

91 Masterson v. New York Central R. Co., 361 U.S. 832, 80 S.Ct. 84.

92 C. Where lower court reversed a jury verdict for the employee and directed a

new trial:

93 Banning v. Detroit, Toledo & Ironton R. Co., 338 U.S. 815, 70 S.Ct. 54, 94

L.Ed. 493.

94 Dixon v. Atlantic Coast Line R. Co., 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. 628.

95 Thomas v. Chesapeake & Ohio R. Co., 344 U.S. 921, 73 S.Ct. 387, 97 L.Ed.

709.

96 Milom v. New York Central R. Co., 355 U.S. 953, 78 S.Ct. 537, 2 L.Ed.2d 529.

97 Anderson v. Atlantic Coast Line R. Co., 361 U.S. 841, 80 S.Ct. 83.

98 D. Where lower court sustained a jury verdict for the employee or held that the

employee's case should have gone to the jury:

99 Atlantic Coast Line R. Co. v. Haselden, 338 U.S. 825, 70 S.Ct. 73, 94 L.Ed.

501.

100 Atlantic Coast Line R. Co. v. Hill, 340 U.S. 814, 71 S.Ct. 42, 95 L.Ed. 598.

101 New York, New Haven & Hartford R. Co. v. Korte, 342 U.S. 868, 72 S.Ct. 108,

96 L.Ed. 652.

102 Atchison, Topeka & Santa Fe R. Co. v. White, 343 U.S. 915, 72 S.Ct. 648, 96

L.Ed. 1330.

103 Pennsylvania R. Co. v. Donnelly, 344 U.S. 855, 73 S.Ct. 93, 97 L.Ed. 663.

104 Denver & Rio Grande Western R. Co. v. McGowan, 344 U.S. 918, 73 S.Ct.

346, 97 L.Ed. 707.



105 Terminal Railroad Ass'n of St. Louis v. Barnett, 345 U.S. 956, 73 S.Ct. 938, 97

L.Ed. 1377.

106 Southern Pacific Co. v. Miller, 346 U.S. 909, 74 S.Ct. 239, 98 L.Ed. 406.

107 Chicago, Milwaukee, St. Paul & Pacific R. Co. v. Woodrow, 347 U.S. 935, 74

S.Ct. 630, 98 L.Ed. 1085.

108 Fort Worth & Denver R. Co. v. Prine, 348 U.S. 826, 75 S.Ct. 42, 99 L.Ed. 651.

109 Chicago, Burlington & Quincy R. Co. v. Bonnier, 348 U.S. 830, 75 S.Ct. 53, 99

L.Ed. 655.

110 Chicago & North Western R. Co. v. Margevich, 348 U.S. 861, 75 S.Ct. 84, 99L.Ed. 678.

111 Louisiana & Arkansas R. Co. v. Johnson, 348 U.S. 875, 75 S.Ct. 111, 99 L.Ed.

688.

112 Chattanooga Station Co. v. Massey, 348 U.S. 896, 75 S.Ct. 216, 99 L.Ed. 704.

113 Chicago, Rock Island & Pacific R. Co. v. Kifer, 348 U.S. 917, 75 S.Ct. 299, 99

L.Ed. 719.

114 Elgin, Joliet & Eastern R. Co. v. crowley, 348 U.S. 927, 75 S.Ct. 340, 99 L.Ed.

727.

115 Chicago, Rock Island & Pacific R. Co. v. Wright, 349 U.S. 905, 75 S.Ct. 581,

99 L.Ed. 1241.

116 Atlantic Coast Line R. Co. v. Chancey, 349 U.S. 916, 75 S.Ct. 606, 99 L.Ed.

1250.

117 Great Northern R. Co. v. Hallada, 350 U.S. 874, 76 S.Ct. 119, 100 L.Ed. 773.

118 New York Central R. Co. v. Ruddy, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 779.

119 New York, New Haven & Hartford R. Co. v. Cereste, 351 U.S. 951, 76 S.Ct.

848, 100 L.Ed. 1475.



120 Louisiana & Arkansas R. Co. v. Moore, 351 U.S. 952, 76 S.Ct. 849, 100 L.Ed.

1475.

121 Texas & Pacific R. Co. v. Buckles, 351 U.S. 984, 76 S.Ct. 1052, 100 L.Ed.

1498.

122 Kansas City Southern R. Co. v. Justis, 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53.

123 Chicago Great Western R. Co. v. Scovel, 352 U.S. 835, 77 S.Ct. 53, 1 L.Ed.2d

54.

124 New York, Chicago & St. Louis R. Co. v. Masiglowa, 352 U.S. 1003, 77 S.Ct.

562, 1 L.Ed.2d 548.

125 Illinois Central R. Co. v. Bowman, 355 U.S. 837, 78 S.Ct. 63, 2 L.Ed.2d 49.

126 Elgin, Joliet & Eastern R. Co. v. Gibson, 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d

193.

127 Martin v. Tindell, 355 U.S. 959, 78 S.Ct. 545, 2 L.Ed.2d 534.

128 Kansas City Southern R. Co. v. Thomas, 356 U.S. 959, 78 S.Ct. 995, 2 L.Ed.2d

1066.

129 Missouri-Kansas-Texas R. Co. v. Bush, 358 U.S. 827, 79 S.Ct. 45, 3 L.ed.2d

67.

130 Wabash R. Co. v. Wehrli, 358 U.S. 932, 79 S.Ct. 321, 3 L.Ed.2d 304.

131 Butler v. Watts, 359 U.S. 926, 79 S.Ct. 609, 3 L.Ed.2d 628.

132 Pennsylvania R. Co. v. Byrne, 359 U.S. 960, 79 S.Ct. 798, 3 L.Ed.2d 766.

133 Illinois Central R. Co. v. Andre, 361 U.S. 820, 80 S.Ct. 65.

134 E. Where lower court set aside a jury verdict for the employer because of erroneous instructions and granted a new trial:

Wabash R. Co. v. Byler, 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643.



136 Delaware, Lackawanna & Western R. Co. v. Siegrist, 360 U.S. 917, 79 S.Ct.

1435, 3 L.Ed.2d 1533.

137 Mr. Justice HARLAN, whom Mr. Justice WHITTAKER joins, dissenting.

138 The opening of a new Term that confronts the Court with the usual volume of

important and exacting business impels me to reiterate the view that cases

involving only factual issues and which are of no general importance have no

legitimate demands upon our energies, already taxed to the utmost. See Rogers

v. Missouri Pacific R. Co., 352 U.S. 500, 524, 559, 77 S.Ct. 443, 459, 478, 1

L.Ed.2d 493 (dissenting opinions). The extreme character of the adjudication

which has been made in this case also deserves something more than merely

noting my dissent on the merits, for I do not think that the reversal of this

judgment is to be justified even under the philosophy of Rogers.

139 Petitioner was injured while engaged, as a member of a 'wreck train crew,' in

retracking two derailed boxcars on the line of another railroad during the early

morning of a 'sleety, wet and sloppy' day. The operation involved the use on

each car of a derrick and four outriggers. Each outrigger was supported from

beneath by wooden blocks. The first derailed car was successfully retracked.

The equipment then had to be moved for a similar operation on the second car.

In this process petitioner wrenched his back while attempting to remove one of

the wooden blocks which had become embedded in mud. Being unable to brace

his right foot on the narrow surface of the ground between the block and one of

the railroad cross-ties, petitioner placed that foot on the tie itself. In answer to

interrogatories the jury found that respondent had been negligent in that 'the tie

of the track (petitioner) was required to walk was elevated a substantial distance

above the ground level and was covered with grease or oil, thereby affording

unstable footing.' A verdict in the sum of $25,000 was returned which on

review was set aside by the Ohio Supreme Court.

140 The Court does not reach the question as to the applicability of the Ohio rule

that this specification of negligence excluded appellate consideration of any

others asserted by petitioner. I can hardly believe that the Court quarrels with

the state court's ruling that as a matter of law the 'position of the crosstie,

slightly elevated above the roadbed' could not support the jury's finding of

negligence because such state of affairs was a common and notorious one.

Hence justification for the overturning of this judgment must rest upon what the

record shows as to the presence of grease on the crosstie and as to the

respondent's culpability for that alleged condition.

141 Unless liabilit in FELA cases ma be redicated u on mere con ecture this



,

record for me is manifestly deficient. The only evidence that there was grease

on the crosstie was petitioner's statement on cross-examination that he found

some grease on the sole of the shoe of his right foot, and the testimony of a

section foreman of the other railroad that grease was used on that railroad's

switches, which were customarily lubricated at least twice a week. Petitioner

had not mentioned on direct examination, in his pre-trial deposition, or in a

written account of the accident made shortly after it occurred, that he hadencountered grease at any stage of the operation, and even on cross-

examination did not claim that he had seen grease anywhere in the vicinity, still

less on the particular crosstie where his foot had rested. With respect to the

foreman's testimony, there is no evidence at all in the record before us as to the

position of any of the switches in relation to the crosstie in question—whether

any of them were adjacent to it or far removed.

142 But even if this evidence be considered as justifying the jury's conclusion thatthere was grease on this particular crosstie, there was, in the words of the Ohio

court, no evidence whatever that respondent 'placed it there, knew about it, or,

in the exercise of ordinary care, should have known about it.' Evidence as to

how long the alleged greasy condition of this crosstie had existed was wholly

lacking. The tie on the day in question was covered with mud. And the section

foreman of the other railroad testified that there was nothing untoward about

the condition of the area when he inspected it the next morning. How in these

circumstances it could 'with reason' be said that the respondent failed in someduty of inspection is beyond me.

143 I cannot understand how on this record even the 'scintilla' rule of Rogers and its

progeny, see dissenting opinion in Sinkler v. Missouri Pacific R. Co., 356 U.S.

326, 332, 78 S.Ct. 758, 763, 2 L.Ed.2d 799, can be thought to justify the

overturning of this judgment. I fear that this decision confirms my growing

suspicion that the real but unarticulated meaning of Rogers is that in FELA

cases anything that a jury says goes, with the consequence that all meaningful judicial supervision over jury verdicts in such cases has been put at an end. See

separate memorandum in Gibson v. Thompson, 355 U.S. 18, 19, 78 S.Ct. 2, 3, 2

L.Ed.2d 1. If so, I think the time has come when the Court should frankly say

so. If not, then the Court should at least give expression to the standards by

which the lower courts are to be guided in these cases. Continuance of the

present unsatisfactory state of affairs can only lead to much waste motion on

the part of lower courts and defense lawyers.

144 I would affirm.



Cases in which petitions for certiorari have been granted but which have not yet

been decided on the merits have not been included nor have cases been

included which did not present issues of negligence or causation under the Act.

Moreover, petitions seeking review of judgments of state courts granting new

trials are not included because we usually treat them as not being 'final' judgments. See 28 U.S.C. § 1257, 28 U.S.C.A. § 1257; Bruce v. Tobin, 245

U.S. 18, 38 S.Ct. 7, 62 L.Ed. 123.

When the Act of February 13, 1925 (43 Stat. 936), which broadened our

certiorari jurisdiction, was before the Congress, Mr. Justice Van Devanter,

speaking for the Court, made explicit that the 'rule of four' governs the grant of

petitions for certiorari. He testified before the Subcommittee of the Senate

Judiciary Committee as follows:

'* * * if there were five votes against granting the petition and four in favor of

granting it, it would be granted, because we proceed upon the theory that when

as many as four members of the court, and even three in some instances, are

impressed with the propriety of our taking the case the petition should be

granted. This is the uniform way in which petitions for writs of certiorari are

considered.' Hearings on S. 2060, Feb. 2, 1924, 68th Cong., 1st Sess., p. 29.

And see Hearings on H.R. 8206, Dec. 18, 1924, 68th Cong., 2d Sess., p. 8.

The 'rule of four' was given as one of the reasons why the Congress thought

that the increase of our discretionary jurisdiction was warranted. The House

Report stated:

'Lest it should be thought that the increase of discretionary jurisdiction might

impair the administration of justice and lead to partial

1

2

3

harris v. pennsylvania r. co., 361 u.s. 15 (1959)

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