In this suit by petitioner under the Federal Employers'
Liability Act to recover damages from his railroad employer for
personal injuries sustained when he was struck by an automobile
driven by a drunken driver while petitioner was serving as crossing
watchman at a heavily traveled intersection of two city streets and
three sets of railroad tracks,
the evidence was not sufficient to support the
jury's conclusion that negligence of the railroad played a part in
petitioner's injury, and a judgment for petitioner was properly
reversed. Pp. 361 U. S.
168 Ohio St. 335, 154 N.E.2d 442, affirmed.
MR. JUSTICE CLARK delivered the opinion of the Court.
Petitioner brought this action under the Federal Employers'
Liability Act, 35 Stat. 65, 45 U.S.C. § 51, for personal injuries
sustained in the course of his employment. Petitioner for some
seven years had been a railroad crossing watchman for respondent at
"Bettes Corners" in Akron, Ohio. He filed suit claiming damages for
an injury he received when an intoxicated automobile driver ran
into him one midnight while he was on duty flagging traffic for a
passing train. Bettes Corners is a heavily traveled vehicular
intersection where Tallmadge Avenue, running east and west, is
intersected by Home Avenue, which runs northeast and southwest.
Three sets of railroad tracks cut diagonally across the
intersection in a northwest-southeast direction. The driver of the
automobile, heading northeast on Home Avenue, was turning
Page 361 U. S. 139
left into Tallmadge Avenue when the accident occurred.
Petitioner claims that the railroad "was negligent in failing to
use ordinary care to provide . . . a reasonable safe place to work"
at the crossing. He says that his duties -- including the flagging
of traffic, maintenance of a lookout for other trains, and the
reporting of hotboxes on the passing ones -- required him to face
the train tracks and created a likelihood of his being struck by
automobiles at the intersection.
The evidence of the manifold duties of petitioner is clear. The
evidence of his exposure to injury by traffic includes the layout
of Bettes Corner, the cut of the railroad tracks across it, and the
duties petitioner was required to perform. Petitioner says that the
layout of the crossing was hazardous for one performing the duties
assigned to him. In support of this, he points to the answer of one
witness as to the action of the car which struck him. This witness
stated that, "like a lot of them I seen there, jumping the gun" at
the crossing, the driver of this car, on seeing the tail light of
the train approaching, drove around the line of cars on the street
adjacent to the train and, as he was turning left onto the other
street, hit petitioner, who was standing near the passing train and
flagging the traffic. There is no claim that the intersection was
dark or that the regular railroad crossing warning, lights, bells,
etc., were not properly working at the time. Nor is it disputed
that the petitioner was waving a lighted lantern in each hand.
Likewise, the intoxicated condition of the driver is not in
controversy, nor is the fact that he passed through a traffic stop
sign immediately before hitting petitioner and violated other local
traffic safety measures designed to protect persons from injury at
The trial court submitted the issue of negligence to the jury,
which found the railroad negligent "in part" because it failed to
afford "enough protection." Judgment for
Page 361 U. S. 140
petitioner was entered on the verdict for $25,000. The Court of
Appeals of Ohio reversed, finding that "there was a complete
failure of proof to establish the negligence." It said that it was
not "reasonably foreseeable" that petitioner "would be injured by
the actions of a drunken driver, violating five traffic statutes. .
. ." 108 Ohio App. 124, 131, 161 N.E.2d 60, 66. After the Supreme
Court of Ohio dismissed the appeal, 168 Ohio St. 335, 154 N.E.2d
442, we granted certiorari, 359 U.S. 958.
In Rogers v. Missouri Pacific R. Co., 352 U.
(1957), we laid down the rule that
"[j]udicial appraisal of the proofs to determine whether a jury
question is presented is narrowly limited to the single inquiry
whether, with reason, the conclusion may be drawn that negligence
of the employer played any part at all in the injury or death."
at 352 U. S.
-507. In measuring Ohio's disposition of the case
here by the Rogers
yardstick, we must affirm. The Act does
not make the employer an insurer. Here, petitioner had been working
at Bettes Corners for seven years, performing these same duties
under like circumstances and, for some three years, on this
identical midnight shift. No accidents had occurred during that
long period. In light of this background, we believe that the
evidence here was so thin that, on a judicial appraisal, the
conclusion must be drawn that negligence on the part of the
railroad could have played no part in petitioner's in jury.
The contention of petitioner is that the witness' remark, "like
a lot of them I seen there, jumping the gun," was testimony of
other occurrences at the crossing similar to the one here involved.
The burden of proving that the crossing was an unsafe place to work
was on petitioner. It depended on some type of testimony showing
the hazards at the crossing. There is no evidence of complaint to
the railroad, nor is there other testimony of similar occurrences
in the record. In making
Page 361 U. S. 141
the judicial appraisal of this tenuous proof, Ohio's Court of
Appeals held it not sufficient. It found that there was "no
evidence of prior occurrences of the kind here under consideration"
in the record. Indeed, unless these 11 words of the witness can be
said with reason to be sufficient, there is none. Under such
circumstances, they are too slender a reed for us to say that the
decision of Ohio's court is erroneous.
We therefore conclude, in light of these considerations, that
the judgment must be
MR. JUSTICE FRANKFURTER.
The opinion of my Brother CLARK demonstrates, insofar as
demonstration is possible in law, that this case should never have
been brought here. In accordance with the views that I expressed in
Rogers v. Missouri Pacific R. Co., 352 U.
, 352 U. S. 524
(1957), and in which I have since persisted, the appropriate
disposition would be dismissal of the writ of certiorari as
improvidently granted. If these views were enforced under the
special circumstances of this case, affirmance by an equally
divided Court would result. Thereby, this case would be cast into
the limbo of unexplained adjudications, and the lower courts, as
well as the profession, would be deprived of knowing the
circumstances of this litigation and the basis of our disposition
of it. Since I have registered my conviction on what I believe to
be the proper disposition of the case, it is not undue compromise
with principle for me to join Brother CLARK's opinion in order to
make possible a Court opinion.
MR. JUSTICE WHITTAKER, concurring.
I heartily join the Court's opinion. But I derive no pleasure
from implying, contrary to the views of my Brothers in the
minority, that there was such complete want of evidence of
negligence by respondent that "reasonable men"
Page 361 U. S. 142
could not differ about it, for, at the very least, I regard my
Brothers who dissent as reasonable men.
Notwithstanding this, it seems to me that the facts of this case
make it crystal clear that the Court's opinion lacks not a whit in
fully comporting with the standards of care of the mythical
"reasonable man," for, like the Ohio Court of Appeals, I simply
cannot see any substantial evidence or even a scintilla or an iota
of evidence -- of negligence on the part of respondent that caused,
or directly contributed in any degree to cause, petitioner's
Reduced to substance, the simple facts are that petitioner, a
crossing flagman, while standing in a well lighted intersection
alongside a passing train in the nighttime and swinging a lighted
red lantern in each hand, was struck, knocked down, and run over by
a drunken driver. What, I ask, did respondent do or omit that
caused or contributed to cause that casualty? How could it have
prevented the casualty? Petitioner says that respondent failed to
provide him with "enough protection." About the only way, as I
perceive, that respondent could protect its crossing flagmen
against injury from such lawless conduct by third persons would be
to provide them with military tanks and make sure they stay in them
while within or moving about crossing intersections in the
performance of their duties -- and I am not even sure that this
method, though ironclad, would be certain protection to a flagman
against lawless injury by third persons, for someone might shoot
him, an act not very different, it seems to me, from the drunken
driver's conduct which injured petitioner in this case, and for
which injuries he insists, and four members of this Court agree, a
jury should be permitted to require respondent to pay damages. How
this can be thought to square with any known concept of
"negligence" by respondent is beyond me.
Page 361 U. S. 143
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK and MR. JUSTICE BRENNAN concur, dissenting.
Petitioner, a nighttime crossing watchman stationed at
respondent's railroad intersection, was seriously injured about
midnight when an automobile driven by an intoxicated person ran
into him from behind while he was flagging traffic for a passing
train. The jury found on a special interrogatory that respondent
was negligent in not providing "enough protection."
The crossing is at Tallmadge and Home Avenues. Tallmadge runs
east and west; Home, northeast and southwest. Three of respondent's
tracks, running northwest and southeast, extend through the
intersection of these two streets, and its trains move over the
parallel tracks in opposite directions and often near the same
There was evidence that, at the approach of a train, petitioner
had duties of the following character: (1) He was supposed to flag
highway traffic moving in four directions to a stop, using lanterns
and a whistle provided for that purpose. (2) If a second train was
to pass at or about the time of another, he had to look for it
before clearing the highway traffic. (3) He was to look for
hotboxes on all passing trains and signal the conductor if he
discovered any.(4) If a train was going east, he was to stand on
the west side of the tracks, the better to see trains coming from
On the night in question, petitioner received a signal that an
eastbound train was approaching. Accordingly, he stationed himself
a few feet west of the tracks, blowing the whistle and swinging the
red lantern first toward Tallmadge Avenue traffic and then toward
Home Avenue traffic. Then he stationed himself facing the tracks,
his back to Tallmadge Avenue traffic.
Although respondent's tracks intersect Tallmadge and Home
Avenues where those two streets cross, it is possible
Page 361 U. S. 144
for a car going north on Home to make a left turn into Tallmadge
even while a train is passing. There is, however, a stop sign on
Home, and petitioner rightfully had halted all highway traffic.
Nevertheless an intoxicated driver came through the stop sign on
Home and made a squealing left turn into Tallmadge, hitting
petitioner and injuring him.
There was evidence that, at the time of the accident, (1) the
caboose of the passing train was just making the crossing; (2) the
railroad block signal could not be seen from where petitioner
stood; (3) another train from the opposite direction on the
adjoining track was due to reach the crossing at any moment, and
petitioner was looking for its headlight; (4) petitioner remained
standing with his back to the highway traffic, as he was obliged to
do if he performed these manifold duties; (5) this traffic was
heavy in both streets; (6) on prior occasions cars, had "jumped the
gun" at this same intersection.
It may be that, if the duty of the petitioner had been
restricted to stopping traffic on the approach of a train and
waving it on when the train had passed, there would be on this
record (unlike that, in Cahill v. New York, N.H. & H. R.
Co., 351 U. S. 183
] no evidence of
negligence on respondent's part. Petitioner's duties were much
broader, as I have indicated. Yet the Court holds there was no jury
question as to whether the place chosen for the performance of
those several duties was a reasonably safe one in light of all the
circumstances, including the volume of traffic at that
intersection. Plainly, respondent is not an insurer. It is under no
duty to remove all possibilities of injury to its employees or to
make, at any cost, the place of work as safe as one's living room.
But whether a particular hazard is of sufficient weight and moment
to induce a reasonable person to guard against, it and whether
Page 361 U. S. 145
danger could be removed or diminished by safety measures
reasonably available are matters for the jury to determine. The
jury might find that the assignment of part of petitioner's duties
to someone else or the installation of mechanical devices to stop
traffic would have been undertaken by a reasonable person under the
circumstances. It is not clear beyond argument of reasonable men
that the respondent could not have foreseen an injury to petitioner
by a reckless motorist or that it took every precaution that
reasonableness under the circumstances required.
The nature of this congested crossing with three sets of
railroad tracks cutting diagonally across its four corners and the
multiple duties required of petitioner at this hour of the night,
were sufficient, in my view, for a jury to find that petitioner was
too busy to protect himself from the vehicular traffic, and that
the employer did not use reasonable care in furnishing him with a
safe place to work, as required by the Act. Bailey v. Central
Vermont R. Co., 319 U. S. 350
very close division in this Court on that issue reinforces my
There is no reason why a negligent actor should be insulated
from the consequences of his negligence merely because a third
party's reckless or criminal act was the immediate cause of the
injury. On the contrary, we have unanimously held that the fact
that the danger to the employee under the Act lies in intentional
or criminal conduct of third parties is not determinative. If
foreseeable, there is a duty to make reasonable provisions against
such events. Lillie v. Thompson, 332 U.
. The instructions on this point seem to me to be
adequate. [Footnote 2
Page 361 U. S. 146
Court appears to place great stress on the lack of evidence of
prior accidents at this intersection and the fact that petitioner
worked there for seven years before being hit by an automobile. But
certainly the duty to make a reasonable effort to provide a safe
place of work is not conditioned upon an employee's first being
injured or killed. Moreover, the liability of the railroad under
the Act attaches even though the injury was caused only "in part"
by its negligence. Such is the command of § 1 of the Act, as
repeatedly applied. See Rogers v. Missouri Pacific R. Co.,
352 U. S. 500
352 U. S.
-507; Cahill v. New York, N.H. & N. R. Co.,
Though I think affirmance of the judgment is error, I am happy
that we have a full Court turning its attention to an important
question of law -- whether trial by jury, guaranteed by the Seventh
Amendment and an integral part of the remedy provided by Congress
under this Act, has been honored by the courts. Moreover, as my
Brother FRANKFURTER points out, affirmance of the judgment below by
an equally divided Court would deprive the decision of all
precedential value, so important in this as in other fields.
Furthermore, the withdrawal of a Justice from a decision on the
merits after certiorari has been granted impairs the integrity of
the practice of allowing the vote of four Justices to bring up any
case on certiorari. [Footnote
] Participation by the whole Court at least in some of these
cases (cf. Reynolds v. Atlantic Coast Line R. Co.,
336 U. S. 207
336 U. S. 209
is partial performance of our pledge to Congress.
For the opinion below, see
224 F.2d 637.
"After an accident has happened, it is usually easy to see how
it could have been avoided, but negligence is not a matter to be
judged after an occurrence. It is always a question of what
reasonably prudent persons under like or similar circumstances
would or should have anticipated in the exercise of ordinary care.
Where there is no danger reasonably to be anticipated or
apprehended, there is no duty to guard against something that, in
the minds of reasonable men does not exist. However, if such
expectation carries a realization that a given set of circumstances
is suggestive of danger, then failure to take appropriate safety
measures constitutes negligence ."
the legislative history in Harris v.
Pennsylvania R. Co., ante,
p. 361 U. S. 15
, at p.
18, note 2 (concurring opinion).