1. In this action under the Federal Employers' Liability Act,
there was evidence (detailed in the opinion) which would support a
jury finding of negligence on the part of the defendants, and it
was error for the trial court to direct a verdict against the
plaintiff. Pp. 336 U. S. 54
336 U. S.
2. In determining whether there is sufficient evidence to submit
an issue of negligence to the jury, it is necessary to look only to
the evidence and reasonable inferences therefrom which tend to
support the case of the litigant against whom a peremptory
instruction has been given. P. 336 U. S.
3. Under the Federal Employers' Liability Act, contributory
negligence of the plaintiff does not bar recovery for an injury
which was "in part" the result of the defendant's negligence, but
the damages in such case "shall be diminished by the jury in
proportion to the amount of negligence attributable" to the
plaintiff. P. 336 U. S.
4. The Federal Employers' Liability Act does not make the
railroad an absolute insurer of the safety of its employees, but
imposes liability only for negligence. P. 336 U. S.
5. The issue of negligence under the Act is to be determined by
the jury according to whether an employer's conduct measures up to
what a reasonable and prudent person would have done under the same
circumstances. P. 336 U. S.
6. The employer is liable for injuries attributable to
conditions under his control when they are not such as a reasonable
man ought to maintain in the circumstances, having in mind that the
standard of care must be commensurate to the dangers of the
business. P. 336 U. S.
7. The assumption that, where the issue of negligence under the
Act is left to the jury, railroads practically are made insurers of
the safety of their employees is inadmissible, since courts should
not assume that, in determining these questions of negligence,
juries will fall short of a fair performance of their
constitutional function. Pp. 336 U. S.
___ Utah ___, 187 P.2d 188, reversed.
Page 336 U. S. 54
In an action brought by petitioner under the Federal Employers'
Liability Act, to recover damages for personal injuries, the trial
court directed a verdict for the defendants. The State Supreme
Court affirmed. ___ Utah ___, 187 P.2d 188. This Court granted
certiorari. 335 U.S. 807. Reversed,
p. 336 U. S.
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner, a railroad switchman, was injured while
performing duties as an employee of respondents in their railroad
coach yard at Denver, Colorado. He brought this action for damages
under the Federal Employers' Liability Act. [Footnote 1
The complaint alleged that, in the performance of his duties in
the railroad yard, it became necessary for him to walk over a
wheel-pit on a narrow boardway, and that, due to negligence of
respondents, petitioner fell into the pit and suffered grievous
personal injuries. The complaint further alleged that respondents
had failed to furnish him a safe place to work in several detailed
particulars, namely that the pit boardway (1) was not firmly set,
(2) was not securely attached, and, (3) although only about 20
inches wide, the boardway had been permitted to become greasy,
oily, and slippery, thereby causing petitioner to lose his balance,
slip, and fall into the pit.
Page 336 U. S. 55
The respondents, in their answer to this complaint, admitted the
existence of the pit and petitioner's injuries as a result of
falling into it. They denied, however, that the injury resulted
from the railroad's negligence, charging that plaintiff's own
negligence was the sole proximate cause of his injuries. On motion
of the railroad, the trial judge directed the jury to return a
verdict in its favor. The Supreme Court of Utah affirmed, one judge
dissenting. ___ Utah ___, 187 P.2d 188.
The opinion of the Utah Supreme Court strongly indicated, as the
dissenting judge pointed out, that its finding of an absence of
negligence on the part of the railroad rested on that court's
independent resolution of conflicting testimony. This Court has
previously held in many cases that, where jury trials are required,
courts must submit the issues of negligence to a jury if evidence
might justify a finding either way on those issues. See, e.g.,
Lavender v. Kurn, 327 U. S. 645
327 U. S.
-653; Bailey v. Central Vermont Ry.,
319 U. S. 350
319 U. S. 354
Tiller v. Atlantic Coast Line R. Co., 318 U. S.
, 318 U. S. 68
and see Brady v. Southern R. Co., 320 U.
, 320 U. S. 479
It was because of the importance of preserving for litigants in
FELA cases their right to a jury trial that we granted certiorari
in this case.
The evidence showed the following facts without dispute:
Petitioner fell into the pit July 26, 1945. The pit, constructed
in 1942, ran approximately four feet east and west underneath three
or more parallel tracks which crossed the pit from north to south.
The pit was 11 feet deep and 4 feet 2 1/2 inches wide, with cement
walls and floor. Car wheels in need of repair were brought to the
pit, lowered into it, there repaired, and then lifted from the pit
for return to use. When not in use, the pit was kept solidly
covered with heavy boards. These
Page 336 U. S. 56
boards were used as a walkway by all employees. When the pit was
in use, the cover boards were removed except one 75 pound
"permanent board," 22 inches wide and 4 feet 2 1/2 inches long.
While the solid covering was off, this "permanent board," built to
fit snugly and firmly, was unquestionably used as a walkway by all
employees up to about May 1, 1945.
On this latter date, the railroad put up "safety chains"
fastened to guard posts, enclosing 16 1/2 feet of the pit on its
north, south and west sides. The posts, 42 inches high, fitted into
tubes imbedded in the ground, the tubes being larger than the posts
-- enough larger to allow the posts to work freely. The chains,
attached two inches from the top of the posts, were to be kept up
while the pit was in use and taken down when the pit was not in
use. They were up when plaintiff slipped from the "permanent board"
into the pit. At that time, a tourist car was standing over the pit
on track "23 1/2." This track "23 1/2" was east of the two east
chain posts, its west rail being about 36 inches, and the tourist
car overhang about 7 inches from the two east chain supporting
posts. [Footnote 2
] The floor
of the "overhang" was about 51 inches above the ground, or 9 inches
above the top of the posts, thus allowing an unobstructed clearance
of 51 inches under the overhang. The "permanent board" was inside
the chain enclosure, the board's east side being about 9 1/2 inches
from the two eastern chain posts. Despite the proximity of the
tourist car to the posts, there was sufficient space east of each
chain post so that pit workers had access to and used the board as
a walkway. One of the
Page 336 U. S. 57
defendant's witnesses, a very large man weighing 250 pounds,
passed through it, though, according to his testimony, with "very
bad discomfort." Petitioner was a much smaller man, weighing 145
pounds, and it was by passing between one of these posts and the
tourist car that petitioner reached the "permanent board" which
bridged the pit. Oil from wheels would sometimes accumulate at the
bottom of the pit, and, as stated by the Utah Supreme Court, the
"permanent board" was "almost certain to become greasy or oily"
from use by the pit men.
Neither before nor after the chains were put up, had the
railroad ever forbidden pit workers or any other workers to walk
across the pit on the "permanent board." Neither written rules nor
spoken instructions had forbidden any employees to use the board.
And witnesses for both sides testified that pit workers were
supposed to, and did, continue to use the board as a walkway after
the chains and posts were installed. The Utah Supreme Court
nevertheless held that erection of the chain and post enclosure was
itself the equivalent of company orders that no employees other
than pit workers should walk across the permanent board when the
chains were up. And the Utah Supreme Court also concluded that
there was insufficient evidence to authorize a jury finding that
employees generally, as well as pit workers, had continued their
longstanding and open practice of crossing the pit on the permanent
board between the time the chains were put up and the time
petitioner was injured.
It is the established rule that, in passing upon whether there
is sufficient evidence to submit an issue to the jury, we need look
only to the evidence and reasonable inferences which tend to
support the case of a litigant against whom a peremptory
instruction has been given. Viewing the evidence here in that way,
it was sufficient to show the following:
Page 336 U. S. 58
Switchmen and other employees, just as pit workers, continued to
use the permanent board to walk across the pit after the chains
were put up as they had used it before. Petitioner [Footnote 3
] and another witness [Footnote 4
Page 336 U. S. 59
employed on work around the pit, testified positively that such
practice continued. It is true that witnesses for the respondents
testified that, after the chains were put up, only the car men, in
Page 336 U. S. 60
applying wheels, used the board "to walk from one side of the
pit to another. . . ." Thus, the conflict as to continued use of
the board as a walkway after erection of the chains was whether the
pit workers alone continued to use it as a walkway, or whether
employees generally so used it. While this left only a very narrow
conflict in the evidence, it was for the jury, not the court, to
resolve the conflict.
It was only as a result of its inappropriate resolution of this
conflicting evidence that the State Supreme Court affirmed the
action of the trial court in directing the verdict. Following its
determination of fact, the Utah Supreme Court acted on the
assumption that the respondents "had no knowledge, actual or
constructive, that switchmen were using the plank to carry out
their tasks," and the railroad had "no reason to suspect" that
employees generally would so use the walkway. From this, the Court
went on to say that respondents "were only required to keep the
board safe for the purposes of the pit crewmen . . . , and not for
all the employees in the yard." But the court emphasized that,
under different facts, maintenance of "a 22-inch board for a
walkway, which is almost certain to become greasy or oily,
constitutes negligence." And, under the evidence in this case as to
the board, grease and oil, the court added:
"It must be conceded that, if defendants knew or were charged
with knowledge that switchmen and other workmen generally in the
yard were habitually using the plank as a walkway in the manner
claimed by plaintiff, then the safety enclosure might be entirely
inadequate, and a jury question would have been presented on the
condition of the board and the adequacy of the enclosure. "
Page 336 U. S. 61
We agree with this last quoted statement of the Utah court, and,
since there was evidence to support a jury finding that employees
generally had habitually used the board as a walkway, it was error
for the trial judge to direct a verdict in favor of respondent.
There was, as the state court pointed out, evidence to show that
petitioner could have taken a slightly longer route and walked
around the pit, thus avoiding the use of the board. This fact,
however, under the terms of the Federal Employers' Liability Act,
would not completely immunize the respondents from liability if the
injury was "in part" the result of respondents' negligence. For,
while petitioner's failure to use a safer method of crossing might
be found by the jury to be contributory negligence, the Act
"contributory negligence shall not bar a recovery, but the
damages shall be diminished by the jury in proportion to the amount
of negligence attributable to such employee. . . ."
Much of respondents' argument here is devoted to the proposition
that the Federal Act does not make the railroad an absolute insurer
against personal injury damages suffered by its employees. That
proposition is correct, since the Act imposes liability only for
negligent injuries. Cf. Coray v. Southern Pac. Co.,
335 U. S. 520
the issue of negligence is one for juries to determine according to
their finding of whether an employer's conduct measures up to what
a reasonable and prudent person would have done under the same
circumstances. And a jury should hold a master
"liable for injuries attributable to conditions under his
control when they are not such as a reasonable man ought to
maintain in the circumstances,"
bearing in mind that "the standard of care must be commensurate
to the dangers of the business." Tiller v. Atlantic Coast Line
R. Co., 318 U. S. 54
318 U. S.
There are some who think that recent decisions of this Court
which have required submission of negligence questions
Page 336 U. S. 62
to a jury make, "for all practical purposes, a railroad an
insurer of its employees." See
individual opinion of Judge
Major, Griswold v. Gardner,
155 F.2d 333, 334. But
Judge Kerner's dissent from this view, 155 F.2d 333, at
337, and Judge Lindley's dissenting opinion 155 F.2d 333, at
337-338. This assumption, that railroads are made insurers where
the issue of negligence is left to the jury, is inadmissible. It
rests on another assumption, this one unarticulated, that juries
will invariably decide negligence questions against railroads. This
is contrary to fact, as shown for illustration by other Federal
Employers Liability cases, Barry v. Reading Co.,
129, cert. denied,
324 U.S. 867; Benton v. St.
Louis-San Francisco R. Co.,
182 S.W.2d 61, cert.
324 U.S. 843. And cf. Bruner v. McCarthy,
Utah 399, 142 P.2d 649, cert. dism'd for reasons stated,
323 U.S. 673. Moreover, this Court stated some sixty years ago,
when considering the proper tribunal for determining questions of
"We see no reason, so long as the jury system is the law of the
land and the jury is made the tribunal to decide disputed questions
of fact, why it should not decide such questions as these as well
Jones v. East Tennessee v. & G. R. Co.,
128 U. S. 443
128 U. S. 445
And peremptory instructions should not be given in negligence cases
"where the facts are in dispute, and the evidence in relation to
them is that from which fair-minded men may draw different
inferences." Washington & G. R. Co. v. McDade,
135 U. S. 554
135 U. S. 572
Such has ever since been the established rule for trial and
appellate courts. See Tiller v. Atlantic Coast Line R.
Co., 318 U. S. 54
318 U. S. 67
Courts should not assume that in determining these questions of
negligence juries will fall short of a fair performance of their
constitutional function. In rejecting a contention that juries
could be expected to determine certain disputed questions on whim,
this Court, speaking
Page 336 U. S. 63
through Mr. Justice Holmes, said: "But it must be assumed that
the constitutional tribunal does its duty, and finds facts only
because they are proved." Aikens v. Wisconsin,
195 U. S. 194
195 U. S.
In reaching its conclusion as to negligence, a jury is
frequently called upon to consider many separate strands of
circumstances, and from these circumstances to draw its ultimate
conclusion on the issue of negligence. Here, there are many
arguments that could have been presented to the jury in an effort
to persuade it that the railroad's conduct was not negligent, and
many counter arguments which might have persuaded the jury that the
railroad was negligent. The same thing is true as to whether
petitioner was guilty of contributory negligence. Many of such
arguments were advanced by the Utah Supreme Court to support its
finding that the petitioner was negligent and that the railroad was
not. [Footnote 5
] But the
Page 336 U. S. 64
made by the State Supreme Court are relevant and appropriate
only for consideration by the jury, the tribunal selected to pass
on the issues. For these reasons, the trial court should have
submitted the case to the jury, and it was error for the Utah
Supreme Court to affirm its action in taking the case from the
It is urged by petitioner that other fact issues should have
been submitted to the jury in addition to those we have
specifically pointed out. We need not consider these contentions
now, since they may not arise on another trial of the case.
The judgment of the Supreme Court of Utah is reversed, and the
cause is remanded for further action not inconsistent with this
It is so ordered.
35 Stat. 65 as amended by 36 Stat. 291 and 53 Stat. 1404, 45
U.S.C. §§ 51-60.
There was evidence that other types of cars had a wider
overhang, thereby reducing the space available for passage between
the posts and the car. This evidence bore directly on the fact
question as to the practice of employees generally in using the
boardway as petitioner did here.
Petitioner testified in part as follows:
"Q. Mr. Wilkerson, I will ask you to state whether or not you
have ever observed other switchmen or workmen working in the yards
there in passing over that pit while cars were standing on 23 1/2
since the safety chains were up?"
"A. Yes, sir, I have."
"Q. What has that practice been, the practice of crossing over
"A. Men that work around there, regardless of whether switchmen
or car men, that wanted to go that way went through there."
"Q. Went through -- you mean over the pit?"
"A. Over that pit, as I just described, from either side."
"* * * *"
"Q. I will ask you to state whether or not you observed any
practice with reference to crossing over the pit when men were
working on the cars there in the day time before these chains were
"A. Walked right straight across the board."
"Q. Was there a board usually there to walk over?"
"A. Yes, sir."
"Q. Was there any change in that practice after the chains were
"A. None, only they had to walk around the chains."
"* * * *"
"Q. What did you observe with reference to the number of times
the occasions when men would cross over the pit."
"A. Oh, I couldn't say; I suppose maybe a hundred times; varies,
men, both switchmen and carmen or others working there in the yard
necessary, pullman, employees, and so forth."
"Q. Crossed over the pit?"
"A. Yes, sir, it was a common practice for everybody to use that
"* * * *"
"Q. Did you ever see -- did you ever notice the board ever being
used for any other purpose except men walking across?"
"A. No, sir, I haven't."
"Q. Ask you to state whether or not you experience any
difficulty in passing between the car and the post and onto the
board and over the board and between the car and the north post at
the time you passed it, the first time in the morning?"
Another witness testified in part as follows:
"Q. And what have you notice with reference to the practice of
men passing between the standing cars on 23 1/2 and the posts that
hold the safety chains?"
"A. Well, they would walk through and get on the board and walk
to and from each side, and the men that work on the pit work on
that board, and sometimes set on the board next to the -- in next
to the car there to perform their work, you know, like where they
are up under, or working on the car, they use the board over from
it to work on."
"* * * *"
"Q. What has been your practice in passing between cars that are
standing on 23 1/2 and the posts that hold the stakes and chains
when they have been in place?"
"A. When I have occasion to pass through there, I put my hand on
the post, step over on the board, and go around the other post, and
that is the way I pass to and from on the pit."
"Q. Have you observed other men passing over the pit under
"A. Yes, sir, I have."
"Q. And what can you say with reference to the -- such
occurrences, as to how often they happen?"
"A. Oh, I would judge that I saw the men pass through there
dozens of times."
"* * * *"
"Q. Have you seen any other switchman working there in the yards
act similarly; that is, go around the post, between the post and
the car, and pass over the board?"
"A. Yes, sir, I have saw my helpers at different times and
before the chains were placed, we used the board at all times, you
know, just to cross the pit. I have walked across the pit a number
of times that way, and also my helpers."
This witness later gave the names of two switchmen he had seen
cross after chains were put up, but he did not thereby qualify his
testimony previously given as to the practice of employees
generally to use the walkway.
The state court argued that "other and safer routes were open"
to the petitioner. But contributory negligence does not exempt a
railroad from liability for its own negligence.
The state court also advanced the following argument:
"In this particular case, the board appears adequate for the use
of the pit crewmen, but entirely inadequate if intended to be a
crosswalk for other employees. Employees climbing in and out of the
pit approach more deliberately, use other and different handholds,
and are more careful of their footing, while employees swinging on
to the plank in a hurry are apt to forget about the slippery
condition of an oily board and forget about the dangers incident to
crossing, as did the plaintiff, who swung himself around the chain
post and onto the plank."
Aside from the apparent absence of direct evidence that pit
crewmen would exercise greater care to protect themselves than
would other employees, whether they would or not is patently a jury
The state court also said:
"Had they not intended to preclude the use of the board as a
walkway, the defendants would not have installed the chain posts so
as to block an open straight approach to the board."
This argument of the state court ignores the absence of any
direct evidence to show that the chains were erected to keep people
from walking over the old "permanent board" walkway. Petitioner
testified that it was his understanding that the chains were
erected "to keep people from walking directly into the open
Another argument of the State Supreme Court was:
"Also, a sign not to cross would have afforded plaintiff no
additional security or warning, for he disregarded the chain, and
he would no doubt have ignored another form of warning."
If such an inference was justifiable and was relevant at all on
the question of railroad negligence, it was an inference to be
drawn from facts by the jury, not by the court.
MR. JUSTICE FRANKFURTER, concurring.
Trial by jury as guaranteed by the Constitution of the United
States and of the several States presupposes a jury under proper
guidance of a disinterested and competent trial judge. Herron
v. Southern Pacific Co., 283 U. S. 91
. It is
an important element of trial by jury which puts upon the judge the
exacting duty of determining whether there is solid evidence on
which a jury's
Page 336 U. S. 65
verdict could be fairly based. When a plaintiff claims that an
injury which he has suffered is attributable to a defendant's
negligence -- want of care in the discharge of a duty which the
defendant owed to him -- it is the trial judge's function to
determine whether the evidence in its entirety would rationally
support a verdict for the plaintiff, assuming that the jury took,
as it would be entitled to take, a view of the evidence most
favorable to the plaintiff. If there were a bright line dividing
negligence from nonnegligence, there would be no problem. Only an
incompetent or a willful judge would take a case from the jury when
the issue should be left to the jury. But, since questions of
negligence are questions of degree, often very nice differences of
degree, judges of competence and conscience have in the past, and
will in the future, disagree whether proof in a case is sufficient
to demand submission to the jury. The fact that a third court
thinks there was enough to leave the case to the jury does not
indicate that the other two courts were unmindful of the jury's
function. The easy but timid way out for a trial judge is to leave
all cases tried to a jury for jury determination, but, in so doing,
he fails in his duty to take a case from the jury when the evidence
would not warrant a verdict by it. A timid judge, like a biased
judge, is intrinsically a lawless judge.
These observations are especially pertinent to suits under the
Federal Employers' Liability Act. The difficulties in these cases
derive largely from the outmoded concept of "negligence" as a
working principle for the adjustments of injuries inevitable under
the technological circumstances of modern industry. This cruel and
wasteful mode of dealing with industrial injuries has long been
displaced in industry generally by the insurance principle that
underlies workmen's compensation laws. For reasons that hardly
reflect due regard for the interests
Page 336 U. S. 66
of railroad employees, "negligence" remains the basis of
liability for injuries to them. It is, of course, the duty of
courts to enforce the Federal Employers' Liability Act, however
outmoded and unjust in operation it may be. But so long as
negligence, rather than workmen's compensation, is the basis of
recovery, just so long will suits under the Federal Employers'
Liability Act lead to conflicting opinions about "fault" and
"proximate cause." The law reports are full of unedifying proof of
these conflicting views, and that too by judges who seek
conscientiously to perform their duty by neither leaving everything
to a jury nor, on the other hand, turning the Federal Employers'
Liability Act into a workmen's compensation law.
Considering the volume and complexity of the cases which
obviously call for decision by this Court, and considering the time
and thought that the proper disposition of such cases demands, I do
not think we should take cases merely to review facts already
canvassed by two and sometimes three courts even though those facts
may have been erroneously appraised. The division in this Court
would seem to demonstrate beyond peradventure that nothing is
involved in this case except the drawing of allowable inferences
from a necessarily unique set of circumstances. For this Court to
take a case which turns merely on such an appraisal of evidence,
however much hardship in the fallible application of an archaic
system of compensation for injuries to railroad employees may touch
our private sympathy, is to deny due regard to the considerations
which led the Court to ask and Congress to give the power to
control the Court's docket. Such power carries with it the
responsibility of granting review only in cases that demand
adjudication on the basis of importance to the operation of our
federal system; importance of the outcome merely to the parties
Page 336 U. S. 67
not enough. It has been our practice to dismiss a writ of
certiorari even after it was granted where argument exposed a want
of conflict or revealed that the case involved no more than its
particular facts. 336 U. S.
But the importance of adhering to this practice cannot be seen
in the perspective of a single case. Despite the mounting burden of
the Court's business, this is the thirtieth occasion in which a
petition for certiorari has been granted during the past decade to
review a judgment denying recovery under the Federal Employers'
Liability Act in a case turning solely on jury issues. The only
petition on behalf of a carrier that brought such a case here
during this period was dismissed, and rightly, as improvidently
granted. McCarthy v. Bruner,
322 U.S. 718; 323 U.S. 673.
Nor does what the United States Reports disclose regarding the
disposition of petitions for certiorari tell the whole story of the
Court's exercise of discretion in granting or denying them. This is
so because of adherence, on the whole, to the wise practice of not
publicly recording the vote of the Justices. Of course, some light
on the situation is derivatively shed by the disclosed position of
the Justices on the merits of the cases. But the unavailable data
are, as can readily
Page 336 U. S. 68
be imagined, especially relevant in the case of such a recurring
problem as granting or denying certiorari under a particular
I would therefore dismiss the petition as having been
improvidently granted. Since, however, that is not to be done, I
too have been obliged to recanvass the record, and likewise think
that there was here enough evidence to go to the jury.
MR. JUSTICE BURTON, having concurred in the Court's opinion,
also joins this opinion.
* The reasons for this practice were indicated by Chief Justice
Taft for a unanimous Court in Layne & Bowler Corp. v.
Western Well Works, 261 U. S. 387
261 U. S. 393
"If it be suggested that as much effort and time as we have
given to the consideration of the alleged conflict would have
enabled us to dispose of the case before us on the merits, the
answer is that it is very important that we be consistent in not
granting the writ of certiorari except in cases involving
principles the settlement of which is of importance to the public,
as distinguished from that of the parties, and in cases where there
is a real and embarrassing conflict of opinion and authority
between the Circuit Courts of Appeals. The present case certainly
comes under neither head."
MR. JUSTICE DOUGLAS, concurring.
While I join in the opinion of the Court, I think it appropriate
to take this occasion to account for our stewardship in this group
The Federal Employers' Liability Act was designed to put on the
railroad industry some of the cost for the legs, eyes, arms, and
lives which it consumed in its operations. Not all these costs were
imposed, for the Act did not make the employer an insurer. The
liability which it imposed was the liability for negligence. But
judges had created numerous defenses -- fellow-servant rule,
assumption of risk, contributory negligence -- so that the employer
was often effectively insulated from liability even though it was
responsible for maintenance of unsafe conditions of work. The
purpose of the Act was to change that strict rule of liability, to
lift from employees the "prodigious burden" of personal injuries
which that system had placed upon them, and to relieve men "who, by
the exigencies and necessities of life are bound to labor" from the
risks and hazards that could be avoided or lessened
"by the exercise of proper care on the part of the employer in
providing safe and proper machinery and equipment with which the
employee does his work. [Footnote
Page 336 U. S. 69
That purpose was not given a friendly reception in the courts.
In the first place, a great maze of restrictive interpretations
were engrafted on the Act, constructions that deprived the
beneficiaries of many of the intended benefits of the legislation.
See Seaboard Air Line Ry. v. Horton, 233 U.
; Toledo, St.L. & W. R. Co. v. Allen,
276 U. S. 165
the review of the cases in Tiller v. Atlantic Coast Line R.
Co., 318 U. S. 54
318 U. S. 62
In the second place, doubtful questions of fact were taken from the
jury and resolved by the courts in favor of the employer. This
Court led the way in overturning jury verdicts rendered for
employees. See Chicago, M. & St.P. R. Co. v. Coogan,
271 U. S. 472
Missouri Pac. R. Co. v. Aeby, 275 U.
; New York Central R. Co. v. Ambrose,
280 U. S. 486
so it was that a goodly portion of the relief which Congress had
provided employees was withheld from them.
The first of these obstacles which the courts had created could
be removed by Congress. In 1939, Congress did indeed move to
release the employees from the burden of assumption of risk which
the Court had reimposed on them. 53 Stat. 1404, 45 U.S.C. § 54;
Tiller v. Atlantic Coast Line R. Co., supra.
evil was not so readily susceptible of Congressional correction
under a system where liability is bottomed on negligence. Since the
condition was one created by the Court, and beyond effective
control by Congress, it was appropriate and fitting that the Court
correct it. In fact, a decision not to correct it was to let the
administration of this law be governed not by the aim of the
legislation to safeguard employees, but by a hostile philosophy
that permeated its interpretation.
The basis of liability under the Act is and remains negligence.
Judges will not always agree as to what facts are necessary to
establish negligence. We are not in agreement in all cases. But the
review of the cases coming
Page 336 U. S. 70
to the Court from the 1943 Term to date [Footnote 2/2
] and set forth in the 336 U.S.
app|>Appendix to this opinion shows, I think, a record
more faithful to the design of the Act than previously
Of the 55 petitions for certiorari filed during this period, 20
have been granted. Of these, one was granted at the instance of the
employer, 19 at the instance of an employee. In 16 of these cases,
the lower court was reversed for setting aside a jury verdict for
an employee or taking the case from the jury. In 3, the lower court
was sustained in taking the case from the jury. In the one case
granted at the instance of the employer, we held that it had
received the jury trial on contributory negligence to which it was
entitled. In these 20 cases, we were unanimous in 10 of the
decisions which we rendered on the merits.
Of the 35 petitions denied, 21 were by employers claiming that
jury verdicts were erroneous or that new trials should not have
been ordered. The remaining 14 were filed by employees. In 10 of
these, the lower court had withheld the case from the jury and
rendered judgment for the employer, in 3, it had sustained jury
verdicts for the employer, and, in 1, reversed a jury verdict for
the employee and directed a new trial.
From this group of cases, three observations can be made:
(1) The basis of liability has not been shifted from negligence
to absolute liability.
(2) The criterion governing the exercise of our discretion in
granting or denying certiorari is not who loses
Page 336 U. S. 71
below, but whether the jury function in passing on disputed
questions of fact and in drawing inferences from proven facts has
(3) The historic role of the jury in performing that function,
see Jones v. East Tennessee v. & G. R. Co.,
128 U. S. 443
128 U. S. 445
Washington & G. R. Co. v. McDade, 135 U.
, 135 U. S. 572
Bailey v. Central Vermont Ry., supra,
is being restored in
this important class of cases.
MR. JUSTICE MURPHY and MR. JUSTICE RUTLEDGE join in this
H.R.Rep. No.1386, 60th Cong., 1st Sess. 2 (1908).
Cases where petitions for certiorari were granted this Term but
which have not yet been decided on the merits have not been
included. Nor have cases been included which, though arising under
the Act, present issues other than those of negligence. Moreover,
Wabash R. Co. v. Williamson,
196 S.W.2d 129, cert.
330 U.S. 824, has been omitted, since negligence was
admitted by the employer, the case turning on the construction of a
APPENDIX TO OPINION OF DOUGLAS, J.
I. Cases in which certiorari was granted:
"A. Where lower court which took the case from the jury or set
aside a jury verdict for an employee was reversed:"
"Tennant v. Peoria & P.U. R. Co., 321 U. S.
"Tiller v. Atlantic Coast Line R. Co., 323 U. S.
"Blair v. Baltimore & O. R. Co., 323 U. S.
"Keeton v. Thompson,
326 U.S. 689."
"Lavender v. Kurn, 327 U. S. 645
"Cogswell v. Chicago & E.I. R. Co.,
"Jesionowski v. Boston & M. R. Co., 329 U. S.
"Ellis v. Union P. R. Co., 329 U. S.
"Pauly v. McCarthy,
330 U.S. 802."
"Myers v. Reading Co., 331 U. S.
(Safety Appliance Act)."
"Lillie v. Thompson, 332 U. S. 459
"Anderson v. Atchison, T. & S.F. R. Co.,
333 U. S.
"Eubanks v. Thompson,
334 U.S. 854."
"Penn. v. Chicago & N.W. R. Co.,
335 U.S. 849."
"Coray v. Southern Pac. Co., 335 U. S.
"Wilkerson v. McCarthy, 336 U. S.
Page 336 U. S. 72
"B. Where lower court which set aside a jury verdict for an
employee or rendered judgment for the employer on questions of law
"Brady v. Southern R. Co., 320 U. S.
"Hunter v. Texas Electric R. Co.,
332 U.S. 827."
"Eckenrode v. Pennsylvania R. Co., 335 U. S.
"C. Where lower court which upheld the jury's verdict on the
issues of negligence and contributory negligence was
"McCarthy v. Bruner,
323 U.S. 673."
II. Cases in which certiorari was denied:
"A. Where lower court withheld case from jury and rendered
judgment for the employer:"
"Beamer v. Virginian R. Co.,
321 U.S. 763."
"Cowdrick v. Pennsylvania R. Co.,
323 U.S. 799."
"Negro v. Boston & M. R. Co.,
324 U.S. 862."
"Fantini v. Reading Co.,
325 U.S. 856."
"Scarborough v. Pennsylvania R. Co.,
326 U.S. 755."
"Chisholm v. Reading Co.,
329 U.S. 807."
"Waller v. Northern P. Terminal Co.,
329 U.S. 742."
"Wolfe v. Henwood,
332 U.S. 773."
"Lasagna v. McCarty,
332 U.S. 829."
"Trust Co. of Chicago v. Erie R. Co.,
"B. Where lower court sustained a jury verdict for the
"Barry v. Reading Co.,
324 U.S. 867,"
"Benton v. St. Louis-San Francisco R. Co.,
"Benson v. Missouri-Kansas-Texas R. Co.,
"C. Where lower court reversed a jury verdict for the employee
and directed a new trial:"
"Owens v. Union Pac. R. Co.,
323 U.S. 740. "
Page 336 U. S. 73
"D. Where lower court sustained jury verdict for the employee or
held that the employee's case should have gone to the jury:"
"Southern Ry. Co. v. Jester,
323 U.S. 716."
"Thompson v. Godsby,
323 U.S. 719."
"Northern Pac. R. Co. v. Bimberg,
323 U.S. 752."
"Terminal R. Assn. of St. Louis v. Copeland,
"Chicago & E.I. R. Co. v. Waddell,
"Boston & M. R. Co. v. Cabana,
325 U.S. 873."
"Texas & P. R. Co. v. Riley,
325 U.S. 873."
"Terminal R. Assn. of St. Louis v. Mooney,
"Terminal R. Assn. of St. Louis v. Schorb,
"Baltimore & O. Chicago Terminal R. Co. v. Howard,
328 U.S. 867."
"Gardner v. Griswold,
329 U.S. 725."
"Henwood v. Chaney,
329 U.S. 760."
"Boston & M.R. v. Meech,
329 U.S. 763."
"Wheeling & L.E. R. Co. v. Keith,
"Delaware, Lackawanna & W. R. Co. v. Mostyn,
"Atlantic Coast Line R. Co. v. Meeks,
"Wabash R. Co. v. Hampton,
333 U.S. 833."
"Fleming v. Husted,
333 U.S. 843."
"Unity R. Co. v. Kurimsky,
333 U.S. 855."
"Baltimore & O. R. Co. v. Skidmore,
"E. Where lower court set aside a jury verdict for the employer
because of erroneous instructions and ordered a new trial."
"Pennsylvania R. Co. v. McCarthy,
329 U.S. 812."
MR. CHIEF JUSTICE VINSON, dissenting.
In my view of the record, there is no evidence, nor any
inference which reasonably may be drawn from the evidence when
viewed in the light most favorable to the
Page 336 U. S. 74
petitioner, which could sustain a verdict for him. This leads me
to conclude that the trial court properly directed a verdict for
the respondents, and I would affirm.
MR. JUSTICE JACKSON, dissenting.
The trial court, after hearing all the evidence and seeing the
witnesses, directed a verdict of no cause of action. The Utah
Supreme Court, in a careful opinion, decided two propositions:
first, whether this Court still holds that a plaintiff "in order to
recover must still show negligence on the part of the employer." It
resolved its doubts by relying upon statements of this Court to the
effect that it still does adhere to that requirement.* Second,
whether there is any evidence of negligence. On
Page 336 U. S. 75
a careful analysis, it found no evidence whatever of negligence
in this case. Following established principles of law, it concluded
that it would have been error to let such a case go to the jury,
and therefore affirmed the trial court's refusal so to do.
This Court now reverses, and, to my mind, at least, espouses the
doctrine that, any time a trial or appellate court weighs evidence
or examines facts, it is usurping the jury's function. But, under
that rule, every claim of injury would require jury trial, even if
the evidence showed no possible basis for a finding of negligence.
Determination of whether there could be such a basis is a function
of the trial court, even though it involves weighing evidence and
examining facts. I think we are under a duty to examine the record
impartially if we take such cases, and to sustain the lower courts
Page 336 U. S. 76
as here, a finding of negligence would obviously be without
basis in fact.
I am not unaware that, even in this opinion, the Court continues
to pay lip service to the doctrine that liability in these cases is
to be based only upon fault. But its standard of fault is such in
this case as to indicate that the principle is without much
This record shows that both the wheel pit into which plaintiff
fell and the board on which he was trying to cross over the pit
were blocked off by safety chains strung between posts. Plaintiff
admits he knew the chains were there to keep him from crossing over
the pit, and to require him to go a few feet farther to walk around
it. After the chains were put up, any person undertaking to use the
board as a crosswalk had to complete involved contortions and
gymnastics, particularly when, as was the case with petitioner, a
car was on the track 23 1/2. A casual examination of the model
filed as an exhibit in this Court shows how difficult was such a
passage. Nevertheless, the Court holds that, if employees succeeded
in disregarding the chains and forced passage frequently enough to
be considered "customary," and the railroad took no further action,
its failure so to do was negligence. The same rule would no doubt
apply if the railroad's precautions had consisted of a barricade,
or an armed guard. I think the railroad here could not fairly be
found guilty of negligence, and that there was no jury
If, in this class of cases, which forms a growing proportion of
its total, this Court really is applying accepted principles of an
old body of liability law in which lower courts are generally
experienced, I do not see why they are so baffled and confused at
what goes on here. On the other hand, if this Court considers a
reform of this law appropriate and within the judicial power to
promulgate, I do not see why it should constantly deny that it is
doing just that.
Page 336 U. S. 77
I think a comparison of the State Supreme Court's opinion, 187
P.2d 188, with the opinion of this Court will fairly raise, in the
minds of courts below and of the profession, the question I leave
to their perspicacity to answer: in which proposition did the
Supreme Court of Utah really err?
* The Supreme Court of Utah considered and rejected the opinion
in Griswold v. Gardner,
155 F.2d 333, in which it was
"Any detailed review of the evidence in a case of this character
for the purpose of determining the propriety of the trial court's
refusal to direct a verdict would be an idle and useless ceremony
in the light of the recent decisions of the Supreme Court. This is
so regardless of what we might think of the sufficiency of the
evidence in this respect. The fact is, so we think, that the
Supreme Court has, in effect, converted this negligence statute
into a compensation law, thereby making, for all practical
purposes, a railroad an insurer of its employees. See
dissent of Mr. Justice Roberts in Bailey v. Central Vermont
Ry., 319 U. S. 350
, 319 U. S.
"The Supreme Court, commencing with Tiller v. Atlantic Coast
Line R. Co., 318 U. S. 54
, in a succession of
cases, has reversed every court (with one exception hereinafter
noted) which has held that a defendant was entitled to a directed
verdict. In the Tiller
case, the Supreme Court reversed
the Court of Appeals for the Fourth Circuit, 128 F.2d 420, which
had affirmed the District Court in directing a verdict. The case,
upon remand, was again tried in the court below, where a directed
verdict was denied. For this denial, the Court of Appeals reversed,
and again the Supreme Court reversed the Court of Appeals, holding
that the District Court properly submitted the case to the jury. In
Tennant v. Peoria & P.U. R. Co., 321 U. S.
, this court reversed the District Court on account of
its refusal to direct a verdict, and our decision, 134 F.2d 860,
was reversed by the Supreme Court. In Bailey v. Central Vermont
Ry., 319 U. S. 350
, the Supreme Court
of Vermont held that there should have been a directed verdict for
the defendant, and the Supreme Court reversed the decision of that
Court. In Blair v. Baltimore & O. R. Co., 323 U. S.
, the Supreme Court reversed the Supreme Court of
Pennsylvania, which had held that there should have been a directed
verdict. In the recent case of Lavender, Administrator, etc. v. Kurn et
], the Supreme Court reversed the Supreme Court of Missouri,
which had held that there should have been a directed verdict for
each of the defendants."
"The only exception to this unbroken line of decisions is
Brady v. Southern R. Co., 320 U. S.
, where the Supreme Court of North Carolina was
affirmed in its holding that there should have been a directed
verdict. This exception, however, is of little consequence in view
of the fact that four members of the court dissented."