1. Upon review here of a state court decision under the Federal
Employers' Liability Act, the question whether the evidence was
sufficient to justify submission of the case to the jury is for the
determination of this Court. P. 320 U. S.
2. Only by a uniform federal rule as to the sufficiency of the
evidence may litigants under the federal Act receive similar
treatment in all States. P. 320 U. S.
3. Where, in a suit under the Federal Employers' Liability Act,
the evidence is such that a verdict for the defendant is the only
reasonable conclusion, the trial court should determine the
proceeding by nonsuit, directed verdict, or otherwise in accordance
with the applicable practice without submission to the jury, or by
judgment non obstante veredicto.
P. 320 U. S.
4. The rule as to when a directed verdict is proper is
applicable to questions of proximate cause. P. 320 U. S.
5. Evidence in this case under the Federal Employers' Liability
insufficient to warrant submission of the case to
the jury. P. 320 U. S.
(a) That the derailer was not equipped with a light was not
evidence of negligence of the carrier. P. 320 U. S.
(b) Relative to misuse of the derailer, there was no evidence
from which the jury could find negligence on the part of employees
of the carrier other than the decedent. P. 320 U. S.
(c) The degree of care which it must exercise did not require
the carrier to guard against a car striking the derailer from an
unexpected direction. P. 320 U. S.
(d) Liability of the carrier cannot be predicated on the
existence of the defective rail, since the rail was suitable for
ordinary use, was not the proximate cause of the accident, and
misuse of the derailer was not a danger reasonably to be
anticipated. P. 320 U. S.
222 N.C. 367, 23 S.E.2d 334, affirmed.
CERTIORARI 319 U.S. 777, to review the reversal of a judgment
for the plaintiff in an action under the Federal Employers'
Page 320 U. S. 477
MR. JUSTICE REED delivered the opinion of the Court.
This case arose under the Federal Employers' Liability Act.
] Certiorari to the
Supreme Court of North Carolina was sought and granted to consider
the retroactivity of the last amendment to the Act in conjunction
with the contention that there was error in the ruling which held
the case improperly submitted to the jury by the trial court. 319
U.S. 777. Our conclusion makes it unnecessary to consider the
The decedent, Earle A. Brady, was a brakeman. At the time of his
death, he was employed in that capacity in interstate commerce by
the respondent, Southern Railway Company. The accident occurred
during a switching movement in Virginia. The freight train upon
which decedent was acting as brakeman came north over a main line
and passed a switch which led into a storage track running south
parallel to and on the east of the main line. There were four other
members of the crew -- the engineer, the fireman, the flagman, and
After the entire train passed the switch, it was stopped and
backed into the storage track to permit another northbound train to
go through on the main line and to pick up twelve cars at the south
end of the storage track. After the other train passed, decedent's
train, without picking up the storage track cars, pulled out on to
the main line, backed southwardly beyond a vehicular grade
Page 320 U. S. 478
which passed over the main line and the storage track about
one-eighth of a mile south of the switchpoints, left the caboose
and all the cars except the four nearest the engine on the main
line, and returned north for the purpose of again backing into the
storage track to pick up the storage track cars. After coupling
these cars on to the four next to the engine, the intended movement
was to pull out again on the main line, back the train southwardly
to the cars left on the main line, couple up all the cars, and
proceed on the journey to the north.
As the engine and four cars backed slowly into the storage
track, the decedent was riding the southeastern step of the rear
car, a gondola. It was 6:30 A.M. on Christmas morning, and so dark
the work was carried on by lantern signals. The trucks hit the
wrong end of a derailer, located three or four car lengths from the
switch, which was closed so as to prevent cars on the storage track
from drifting accidentally onto the main line. [Footnote 2
] The contact derailed the cars and
threw decedent to instant death under the wheels.
Damages were sought for the alleged negligence of the carrier in
failing to furnish a reasonably safe place to work by reason of
defects in the track and derailer and, we assume, since it was
submitted to the jury and passed upon by the Supreme Court of North
Carolina, 222 N.C. 367 at 370, 23 S.E.2d 334 at 337, by the act of
some other employee in improperly closing the derailer after the
Page 320 U. S. 479
before the fatal phase of the switching movement. Further, there
was a charge of negligence in failing to provide a light or other
warning to indicate the dangerous position of the derailer. A
judgment for $20,000 was obtained in the Superior Court which was
reversed in the state Supreme Court on the ground of the failure of
the evidence to support the jury's verdict.
There is thus presented the problem of whether sufficient
evidence of negligence is furnished by the record to justify the
submission of the case to the jury. In Employers' Liability cases,
this question must be determined by this Court finally. Through the
supremacy clause of the Constitution, Art. VI, we are charged with
assuring the act's authority in state courts. Only by a uniform
federal rule as to the necessary amount of evidence may litigants
under the federal act receive similar treatment in all states.
Western & Atlantic R. Co. v. Hughes, 278 U.
, 278 U. S. 498
Chicago M. & St. P. R. Co. v. Coogan, 271 U.
, 271 U. S. 474
Cf. United Gas Public Service Co. v. Texas, 303 U.
, 303 U. S. 143
It is true that this Court has held that a state need not provide
in FELA cases any trial by jury according to the requirements of
the Seventh Amendment. Minneapolis & St.L. R. Co. v.
Bombolis, 241 U. S. 211
But, when a state's jury system requires the court to determine the
sufficiency of the evidence to support a finding of a federal right
to recover, the correctness of its ruling is a federal question.
The weight of the evidence under the Employers' Liability Act must
be more than a scintilla before the case may be properly left to
the discretion of the trier of fact -- in this case, the jury.
Western & Atlantic R. v. Hughes, supra; Baltimore &
Ohio R. Co. Co. v. Groeger, 266 U. S. 521
266 U. S. 524
Cf. Gunning v. Cooley, 281 U. S. 90
281 U. S. 94
Commissioners v. Clark, 94 U. S. 278
94 U. S. 284
When the evidence is such that, without weighing the credibility of
the witnesses, there can be but one reasonable conclusion as to the
verdict, the court should determine the proceeding
Page 320 U. S. 480
by nonsuit, directed verdict, or otherwise in accordance with
the applicable practice without submission to the jury, or by
judgment notwithstanding the verdict. By such direction of the
trial, the result is saved from the mischance of speculation over
legally unfounded claims. Galloway v. United States,
319 U. S. 372
Pence v. United States, 316 U. S. 332
Baltimore & Ohio R. Co. v. Groeger, 266 U.
n. 1; Anderson v. Smith, 226 U.
; Coughran v. Bigelow, 164 U.
, 164 U. S. 307
Gunning v. Cooley, 281 U. S. 90
281 U. S. 93
Seaboard Air Line v. Padgett, 236 U.
, 236 U. S. 673
Parks v. Ross,
11 How. 362, 52 U. S. 373
IX Wigmore on Evidence (3d ed., 1940), §§ 2494 et
An examination of the proven facts to determine whether they are
sufficient to permit a verdict by the jury for the decedent's
estate based upon reason is of no doctrinal importance. Every case
varies. However, the soundness of the judgment entered in the state
Supreme Court depends upon an appraisal of the evidence, and, as to
this, there is a difference of opinion here. Our conclusion is that
there is failure to show in the record any negligence of the
carrier from not putting a light on the derailer or by the action
of other employees than decedent in closing the derailer.
As to the light, it is nowhere shown that it was customary or
even desirable in the operation of this or any other railroad to
equip derailers with such a signal. Apparently lights on a derailer
are not used on storage tracks where, as at the place of the
accident, an automatic block system functions.
Nor do we find any evidence upon which a jury could find
negligence of other employees of the carrier in setting the
derailer without warning the decedent. On the first backward
movement into the storage track, the engineer and fireman were in
the engine cab at the front of the train. There is no evidence that
either left that position
Page 320 U. S. 481
until after the accident. As the entire train passed the
derailer then without incident and again upon its exit from the
storage track to return to the main line to cut the train, there is
no suggestion that the derailer was not open during that part of
the movement. As petitioner states, "during switching operations,
it is the usual rule and custom for the derailer to be kept off the
track until the switching operation is completed." This time, the
switch was closed between the movement just referred to and the
return of the engine and four cars to the storage track to pick up
the cars waiting transportation.
The evidence shows without contrary intimation that, on the
first movement into the storage track, the twelve cars to be picked
up later were south of the crossing, and therefore more than an
eighth of a mile from the switch.
"When the cars or the train was backed into the pass track to
let the northbound train pass, I [the conductor] threw the switch
and the derailer and then came back to the crossing to await the
other movement -- to keep from hitting an automobile. . . . When
that movement was made -- when they backed out on the main line --
I was at this crossing, protecting the crossing. In the backing up
movement, I protected the crossing, and then they cut out the four
cars. The engine came over the crossing, cut off somewhere five or
six cars south of the crossing. I was not up north of the engine
when they cut the cars out. I was back up here. I rode the caboose
car back. When they came on down, I stayed on the caboose car, and
Mr. Brady stayed where the four or five cars were. He cut those
out. I didn't see him. I was checking on those cars. I had left the
caboose. I was not far from those twelve cars, so I left the
caboose to check up on the cars. While I was over there, I heard
the blast of the locomotive engine. I didn't see how the cars were
derailed -- left the track -- nor did I see where Mr. Brady was at
Obviously the conductor, in order to get near the twelve stored
Page 320 U. S. 482
hopped the caboose at the crossing as it backed up on the main
line. The flagman testified that the conductor came back and
watched the crossing after the train first backed into the storage
track. The flagman also testified that, on leaving the caboose
after the second train passed, he, the flagman, went south to check
up on the twelve stored cars, and never touched either the switch
or the derailer.
The undisputed testimony as to the significant movements of the
decedent, Brady, as given by the engineer, follows:
"When we backed into the pass or storage track the first time
and got in there to wait for No. 30 to go by, I saw Mr. Brady close
the switch and the derailer. Mr. Brady gave me the signal to come
back out. He set the derailer not to derail and opened the switch
for me to come out, and I came on out. Then I pulled out and back
down south on the northbound track beyond the crossing. Mr. Brady
was on the four cars, and I saw him get off these four cars. He
rode back north on these four cars 'til he got north of the switch.
He got off the car and throwed the switch and got back and signaled
me back. From the time I came out of the switch until I came back
in there, I never seen anybody else in there, other than Mr.
With the record evidence as to the action of the crew in this
condition, it appears obvious that there is nothing to show
negligence by any of the other servants of the carrier.
We now turn to the third instance of alleged negligence. This is
the existence, to the knowledge of the carrier, of a rail, opposite
the derailer, so worn on top and sides that, in the opinion of
qualified experts, it permitted the thrust of the east wheels of
the car, as they rose over the "wrong end" of the derailer, to
force the flange on the west wheels over the defective rail, and so
to derail the cars, when no such derailment would have occurred,
"nine times out of
Page 320 U. S. 483
ten, if the best type" rail was in use. There is no evidence of
the unsuitability of the rail for ordinary use.
Such evidence, we assume, would justify a finding for
petitioners if the defective rail was the proximate cause of the
derailment and the backing of the train improperly over the closed
derailer a danger reasonably to be anticipated. As to the
likelihood of cars' passing over the wrong end of derailers, one
witness with ten years experience as a brakeman testified that he
recalled three or four instances. Another, the Superintendent of
the railroad, with 22 years' experience, said, "It happens very
frequently. I would say yes, I have seen it 25 to 50 times." The
rule as to when a directed verdict is proper, heretofore referred
to, is applicable to questions of proximate cause. Atchison, T.
& S.F. Ry. Co. v. Toops, 281 U. S. 351
St. Louis-San Francisco Ry. Co. v. Mills, 271 U.
, 271 U. S. 348
New York Central R. Co. v. Ambrose, 280 U.
; Baltimore & Ohio R. Co. v. Tindall,
47 F.2d 19; Texas Gulf Sulphur Co. v. Portland Gas Light
57 F.2d 801. Cf. Story Parchment Co. v. Paterson
Parchment Paper Co., 282 U. S. 555
282 U. S.
The Supreme Court of North Carolina was of the view that
striking a derailer from the unexpected direction "was so unusual,
so contrary to the purpose" of the derailer, that provision to
guard against such a happening was beyond the requirement of due
care. With this we agree. Bare possibility is not sufficient.
Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S.
, at 94 U. S.
"But it is generally held that, in order to warrant a finding
that negligence, or an act not amounting to wanton wrong, is the
proximate cause of an injury, it must appear that the injury was
the natural and probable consequence of the negligence or wrongful
act, and that it ought to have been foreseen in the light of the
Events too remote to require reasonable prevision need not be
anticipated. It was so held as to an intervening
Page 320 U. S. 484
embargo after a delay in transit which was caused by negligence.
The Malcolm Baxter, 277 U. S. 323
277 U. S. 334
Cf. Northern Ry. Co. v. Page, 274 U. S.
, 274 U. S. 74
St. Louis-San Francisco Ry. Co. v. Mills, supra.
arises from negligence, not from injury, under this Act. And that
negligence must be the cause of the injury. Tiller v. Atlantic
Coast Line R. Co., 318 U. S. 54
318 U. S. 67
Here, the rail was sufficient for ordinary use, and the carrier was
not obliged to foresee and guard against misuse of the derailer,
even though the misuse occurred as often as the evidence indicated.
It was the wrongful use of the derailer that immediately occasioned
the harm. Decedent had first closed and then opened the derailer on
the first movement. He signaled the train to back into the storage
track just before the fatal accident. Although this misuse of the
derailer was an act of negligence, it is mere speculation as to
whether that negligence is chargeable to the decedent or another.
Without this unexpected occurrence, the adequacy of the rail
a properly used derailer is unquestioned. It was
entirely disconnected from the earlier act of the carrier in
placing the weak rail in the track. The mere fact that, with a
sound rail, the accident might not have happened is not enough. The
carrier's negligence must be a link in an unbroken chain of
reasonably foreseeable events. [Footnote 3
35 Stat. 65, as amended, 36 Stat. 291, and 53 Stat. 1404.
A derailer is a small but heavy iron device attached to a rail
which opens and closes over the rail by a lever, so as to derail or
turn off the track cars approaching the closed derailer from the
expected direction. When the derailer is open, trains may pass in
either direction without interference. A train or car approaching a
closed derailer from the unexpected or wrong direction may
successfully roll over the obstruction, but, more probably, they
too would be derailed. The apparatus is not designed when closed to
safely permit the passage of cars from the unexpected
See e.g., The Squib Case,
2 W.Bl. 892. Cf.
Cooley on Torts (4th Ed., 1932) § 50, n. 25, and collection of
MR. JUSTICE BLACK, dissenting.
Twelve North Carolina citizens who heard many witnesses and saw
many exhibits found on their oaths that the railroad's employees
were negligent. The local trial judge sustained their finding. Four
members of this Court agree with the local trial judge that the
jury's conclusion was reasonable. Nevertheless, five members of the
Page 320 U. S. 485
purport to weigh all the evidence offered by both parties to the
suit, and hold the conclusion was unreasonable. Truly, appellate
review of jury verdicts by application of a supposed norm of
reasonableness gives rise to puzzling results. [Footnote 2/1
Although I do not agree that the "uniform federal rule" on
directed verdicts announced by the Court correctly states the law,
I place my dissent on the ground that, whatever rule be applied,
petitioner sufficiently alleged and proved at least two separate
acts of negligence attributable to the respondent railroad but for
which the decedent Brady would probably have escaped death. The
first was the act of one of respondent's trainmen in negligently
closing the derailer; the second, the act of respondent's
maintenance crew in negligently keeping a defective rail opposite
that derailer. Proof of either was sufficient, in itself, to
support a jury verdict against respondent under the terms of the
Federal Employers' Liability Act. [Footnote 2/2
Page 320 U. S. 486
Negligence in Closing Derailer.
A contributing cause to
decedent's death was that the derailer was in a closed position at
the time the engineer backed the engine and four cars into it. That
the derailer should have been open is not disputed. The evidence
was sufficient to show that the employee who negligently closed the
derailer must have been either the flagman, the conductor, or the
decedent. The flagman expressly denied that he closed the derailer,
but the conductor made no such denial. Petitioner, although
deprived of decedent's testimony, did produce evidence from which
the jury could find that it was not decedent who closed it.
Testimony established that decedent knew of the existence and
location of the derailer, that he was an experienced brakeman, and
that he would be aware of the danger of riding a freight car over a
closed derailer. From these facts, the jury could find that
decedent thought the derailer was open, since he would not likely
have signaled the train over a closed derailer at the peril of his
own safety and protection. Cf. Atchison, T. & S.F. Ry. Co.
v. Toops, 281 U. S. 351
281 U. S. 356
A similar inference is not justified as regards the flagman and
conductor, for the evidence shows that, at the time of the
accident, both were a half mile away, and therefore were not
imperiled by the decedent's signaling back the train, and were not
in a position to have prevented the signal. [Footnote 2/3
Page 320 U. S. 487
Having thus brought forth evidence that one of respondent's
employees negligently closed the derailer and that decedent was not
that employee, petitioner had proved a case for the jury. I cannot
agree with the view, apparently adopted by the Court, that the
petitioner was required to pin the negligence on a particular one
of decedent's fellow employees. No such burden is imposed by the
Federal Act. It provides merely that a railroad is liable "for . .
. death resulting in whole or in part from the negligence of
of the . . . employees." (Italics supplied.) [Footnote 2/4
Negligence in keeping defective rail opposite derailer.
There was evidence to show that the rail of the pass track opposite
the derailer had been used for twenty-six years; that the top of
the rail was decayed, rusty, badly worn, and thin; that with bare
fingers metal slivers could easily be picked from both sides of the
rail; and that some of the cross ties were old, not properly
supported by ballast, and sloped toward the defective rail.
Petitioner then offered expert evidence, contradicted by
respondent's expert evidence, that the derailment would not have
occurred but for this defective rail. The Court declines to give
any effect whatever to all of this evidence on two stated grounds:
(1) that the rail was suitable for ordinary use, and the backing of
the train improperly over the closed derailer was not "a danger
reasonably to have been anticipated;"(2) that the "weak rail" was
not the "proximate cause" of the death.
It is difficult to imagine how, except by sheer guessing, or by
drawing upon some undisclosed superior fund of wisdom, the Court
reaches the conclusion that respondent
Page 320 U. S. 488
need not have foreseen that trains would be backed over the
wrong end of closed derailers. The evidence of railroad men who had
worked on railroads showed it was foreseeable. Doubtless judges
know more about formal logic and legal principles than do brakemen,
engineers, and divisional superintendents. I am not so certain that
they know more about the danger of keeping a defective rail
immediately opposite a derailer. The Divisional Superintendent of
the Southern Railway Company, put on the stand by the respondent,
testified that trains backed over closed derailers "very
frequently." He himself had seen it happen "on 25 to 50 occasions."
And undisputed evidence, including photographs, showed that
respondent had foreseen this likelihood to the extent that the top
of the derailer had a special groove to hold the flange of a wheel
as it passed over the back of the derailer. That a train would
ordinarily not be backed over a closed derailer except for the
personal negligence of the train crew is not determinative of the
issue of foreseeability. The standard of reasonable conduct may
require the defendant to protect the plaintiff against "that
occasional negligence which is one of the ordinary incidents of
human life, and therefore to be anticipated. . . ." [Footnote 2/5
] And the mere fact that the
negligence of the respondent in placing the weak rail in the track
occurred several years before the accident does not establish that
the subsequent injury was not foreseeable. The negligent conduct of
respondent not only consisted of "placing the weak rail in the
track;" it also consisted of keeping the "weak rail" there.
Nor is it easy to comprehend why the defective rail was not the
"proximate cause" of the injury. It was the last "link in an
unbroken chain of reasonably foreseeable events" which cost the
employee his life. Surely this rail
Page 320 U. S. 489
was the "proximate cause" if those words be used to mean an
event which contributes to produce a result, which is the meaning
Congress intended when it made railroads liable for the injury or
death of an employee "due to" or "resulting in whole or in part
from" the railroad's negligence. [Footnote 2/6
] The record shows that two expert witnesses
with many years of railroad experience testified that the accident
was caused by the defective rail. That one of these witnesses on
cross-examination stated the derailment would not have occurred
"nine time out of ten" if there had been a sound rail hardly
justifies a directed verdict against petitioner. The fact of
causation is no different from any other fact, and does not have to
be proved with absolute certainty; ninety percent certainty should
suffice to make it an issue for the jury. That a sound rail would
have given the deceased nine chances out of ten to escape death
should be enough to give his family and the community the
protection which the Act contemplates.
MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, and MR. JUSTICE
RUTLEDGE concur in this opinion.
For an enlightening exposition of the uncertainties generated by
excessive judicial use of the norm of reasonableness, see
Jackson, Trial Practice in Accident Litigation (1930) 15 Cornell
Law Quarterly, 194 et seq.
It was the writer's opinion
that there was "a persistent, insidious, and plausible tendency
toward uncertainty in everything that legal reasoning touches," and
that this tendency was "easier to illustrate than to describe." Had
today's decision then been available, it could well have been added
to the several decisions which were used as illustrations.
Likewise, the criticism which the writer directed at these
illustrative decisions is exactly applicable to what the Court
today, by applying a legal doctrine misnamed "proximate cause," has
done to the Federal Employers' Liability Act. For what it has done
is to choose
"between two lines of public policy. It could not think in the
simple terms of the statutory command; it reverted to the complex
legal reasoning involving a combination of principles and depending
upon multiplied conditions which the statute tried to
"Every common carrier by railroad, while engaging in commerce
between any of the several States or Territories . . . , shall be
liable in damages to any person suffering injury while he is
employed by such carrier in such commerce, or, in the case of the
death of such employee, to his or her personal representative . . .
for such injury or death resulting in whole or in part from the
negligence of any of the officers, agents, or employees of such
carrier, or by reason of any defect or insufficiency, due to its
negligence, in its cars, engines, appliances, machinery, track,
roadbed, . . . or other equipment."
35 Stat. 65, as amended, 53 Stat. 1404, U.S.C. Title 45, §
Uncontradicted testimony showed that both the flagman and the
conductor were under the duty to operate the derailer in switching
operations when the train was long. Here, the train was four
hundred yards in length. The conductor admitted that he had
operated the derailer once during the switching operation, and that
he had been in a place where he could have closed it before the
engine and four cars backed into it. Not one of the conductor's
fellow employees testified as to what the conductor was doing at
the time when the derailer must have been closed.
fn2/2|>Note 2, supra.
Restatement of Torts § 302, Comment l. See also
on Torts (1941) § 37, p. 243.
fn2/2|>Note 2, supra.