In an action under the Federal Employers' Liability Act in an
Ohio state court against respondent railroad, a jury awarded
damages to petitioner for injuries sustained when his foot slipped
off a ladder on the side of a boxcar. The trial judge entered
judgment for the railroad, notwithstanding the verdict, on the
ground that the evidence was not sufficient to support the verdict.
A court of appeals reversed. The State Supreme Court reversed the
judgment of the court of appeals and affirmed that of the trial
court. On a petition to this Court for certiorari, held:
certiorari is granted; the judgment of the State Supreme Court is
reversed, and the cause is remanded.
166 Ohio St. 129, 140 N.E.2d 319, reversed and remanded.
The petition for writ of certiorari is granted, the judgment of
the Supreme Court of Ohio is reversed, and the cause is remanded.
Rogers v. Missouri Pacific R. Co., 352 U.
MR. JUSTICE FRANKFURTER, dissenting.
In Rogers v. Missouri Pacific R. Co., 352 U.
, 352 U. S. 524
I gave my reasons for deeming it an abuse of the Court's
discretionary certiorari jurisdiction to make cases arising under
the Federal Employers' Liability Act, a class exception to the
Court's principle against granting certiorari when all that is
involved is the evaluation of evidence. The circumstances of the
present case vividly emphasize the objections to such an
All that is to be determined in this case is whether there were
sufficient facts to warrant a jury in finding that the lighting in
the situation in which petitioner worked, assumed to be inadequate,
caused in whole or in part the injury to petitioner. The trial
judge in the Court of Common Please thought not. On review, the
Court of Appeals of Lucas County reversed -- two judges thought
there were enough facts to justify a jury's finding of causation,
while the dissenting judge agreed with the trial court. On review
of this reversal, the Supreme Court of Ohio, with one of its seven
judges not sitting, unanimously reversed the Court of Appeals and
restored the judgment of the trial court. 166 Ohio St. 129, 140
N.E.2d 319. Thus, this issue of the sufficiency of evidence for a
jury's finding of relevant causation was passed on by the three
courts in the hierarchy of Ohio's judiciary. Of the ten judges,
eight found the evidence insufficient for a jury to guess at, and
two thought they should be allowed to guess -- for determination of
causation is inescapably guessing, informed guessing if you will,
Congress saw fit to give the state courts jurisdiction of the
rights it created by the Federal Employers' Liability Act.
Presumably, it had confidence in the state courts for enforcement
of these rights. It emphasized this confidence by a special Act,
passed more than forty years ago, which withdrew from this Court
what theretofore had been appealability as of right of judgments of
state courts in Federal Employers' Liability Act cases. It left
adjudications brought in the state courts with the state courts,
except in instances applicable generally to the jurisdiction on
writ of certiorari, to be exercised, that
Page 354 U. S. 519
is, "only where there are special and important reasons
therefor." Rule 19 of the Revised Rules of this Court.
It cannot be too often repeated. This Court has said again and
again that a difference of opinion in weighing evidence is not
included among "special and important reasons" for granting
certiorari. One would suppose that an examination of the evidence
by three courts and ten judges of Ohio would be proof that the
facts in the case have been conscientiously canvassed. A different
case would be presented were this Court to find that the Ohio
Supreme Court applied wrong legal standards to the particular facts
before it, or evinced hostility to the federal statute. Either one
of these grounds would present a fair basis in which to seek review
here of the decision of the Ohio Supreme Court. But that is not the
basis on which review was sought and on which it is granted. In
agreeing to take the case, the Court merely accedes to the natural
desire of an unsuccessful plaintiff to have one more court guess
whether there were enough facts on which the jury should be allowed
to do its guessing. And so the nine members of the highest tribunal
in the land, preoccupied with more than enough cases involving the
gravest issues of national importance, are asked to take on the
task of making an independent study of the record below (for I must
assume that those who review the merits have examined the 294 pages
of the record), the four opinions below, and the briefs of parties,
after three courts and ten judges of Ohio have conscientiously
dealt with questions that are not specialized questions of federal
law, and indeed constitute probably the most recurring staple
business of the courts throughout the country.
I must respectfully decline to assume this task. This Court from
time to time is compelled to hold that a federal court has abused
some discretionary judicial power. Abuse of judicial discretion is
a technical phrase to express a misconception of the judicial
function as exercised in a
Page 354 U. S. 520
particular situation. There is no appeal from such abuse of
judicial discretion by this Court. When there is such a misuse of
power, as I deem it to be in making an exception, in effect if not
formally, of cases under the Federal Employers' Liability Act that
turn merely on evaluation of evidence, only the individual
conscience remains. Since this case underscores the reasons for
declining to associate myself in what I regard as a misuse of the
power properly vested in a minority of this Court in granting
certiorari, I have no choice but to conclude that the writ of
certiorari in this case has been improvidently granted and, having
been granted, should be dismissed.
MR. JUSTICE BURTON, dissenting.
For the reasons stated by the Supreme Court of Ohio, 166 Ohio
St. 129, 140 N.E.2d 319, I believe that petitioner's injuries were
not caused, "in whole or in part," by the possible inadequacy of
MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITTAKER joins,
dissents for the reasons given in his opinion in Rogers v.
Missouri Pacific R. Co., 352 U. S. 500