MR. JUSTICE BRENNAN delivered the opinion of the Court.
A jury in the Circuit Court of St. Louis awarded damages to the petitioner in this action under the Federal Employer's Liability Act.
Petitioner was a laborer in a section gang, working on July 17, 1951, along a portion of respondent's double-track line which, near Garner, Arkansas, runs generally north and south. The tracks are on ballast topping the surface of a dirt "dump" with sloping sides, and there is a path about a yard wide bordering each side of the surface between the crest of the slope and the edge of the ballast. Weeds and vegetation, killed chemically preparatory to burning them off, covered the paths and slopes. Petitioner's foreman assigned him to burn off the weeds and vegetation—the first time he was given that task in the two months he had worked for the respondent. He testified that it was customary to burn off such vegetation with a flame thrower operated from a car running on the tracks. Railroad witnesses testified, however, that the respondent discontinued the use of flame throwers at least
Petitioner was supplied with a crude hand torch and was instructed to burn off the weeds and vegetation along the west path and for two or three feet down the west slope. The events leading to his mishap occurred after he proceeded with the work to a point within thirty to thirty-five yards of a culvert adjoining the path.
Petitioner testified, without contradiction, that the foreman instructed him and other members of the section gang to stop what they were doing when a train passed and to take positions off the tracks and ties to observe the journals of the passing train for hotboxes. The instructions were explicit not to go on either of the tracks or to stand on or near the ends of the ties when a train was passing on a far track. This was a safety precaution because "the sound of one train would deaden the sound of another one that possibly would come from the other way."
On this day petitioner heard the whistle of a train which was approaching from behind him on the east track. He promptly "quit firing" and ran north to a place on the path near the mentioned culvert. He was standing a few feet from the culvert observing the train for hotboxes when he became enveloped in smoke and flames. The passing train had fanned the flames of the burning vegetation and weeds, carrying the fire to the vegetation around his position. He threw his arm over his face, retreated quickly back on the culvert and slipped and fell from the top of the culvert, suffering the serious injuries for which he sought damages in this suit.
The complaint alleges negligence in that petitioner was "required to work at a place in close proximity to defendant's railroad tracks, whereon trains moved and passed, causing the fire from said burning weeds and the smoke therefrom to come dangerously close to plaintiff and
We think that the evidence was sufficient to support the jury finding for the petitioner. The testimony that the burning off of weeds and vegetation was ordinarily done with flame throwers from cars on the tracks and not, as here, by a workman on foot using a crude hand torch, when that evidence is considered with the uncontradicted testimony that the petitioner was where he was on this narrow path atop the dirt "dump" in furtherance of explicit orders to watch for hotboxes, supplied ample support for a jury finding that respondent's negligence played a part in the petitioner's injury. These were probative facts from which the jury could find that respondent was or should have been aware of conditions which created a likelihood that petitioner, in performing the duties required of him, would suffer just such an injury as he did.
The Missouri Supreme Court based its reversal upon its finding of an alleged admission by the petitioner that
We interpret the foregoing to mean that the Missouri court found as a matter of law that the petitioner's conduct was the sole cause of his mishap. But when the petitioner agreed that his primary duty was to watch the fire he did not also say that he was relieved of the duty to stop to watch a passing train for hotboxes. Indeed, no witness testified that the instruction was countermanded. At best, uncertainty as to the fact arises from the petitioner's testimony, and in that circumstance not the court, but the jury, was the tribunal to determine the fact.
We may assume that the jury could properly have reached the court's conclusion. But, as the probative facts also supported with reason the verdict favorable to the petitioner,
The opinion may also be read as basing the reversal on another ground, namely, that it appeared to the court that the petitioner's conduct was at least as probable a cause for his mishap as any negligence of the respondent, and that in such case there was no case for the jury. But that would mean that there is no jury question in actions under this statute, although the employee's proofs support
Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.
The law was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant.
The Congress when adopting the law was particularly concerned that the issues whether there was employer fault and whether that fault played any part in the injury or death of the employee should be decided by the jury whenever fair-minded men could reach these conclusions on the evidence.
Cognizant of the duty to effectuate the intention of the Congress to secure the right to a jury determination, this Court is vigilant to exercise its power of review in any case where it appears that the litigants have been improperly deprived of that determination.
The kind of misconception evidenced in the opinion below, which fails to take into account the special features of this statutory negligence action that make it significantly different from the ordinary common-law negligence
The judgment is
MR. JUSTICE BURTON concurs in the result.
MR. JUSTICE REED would affirm the judgment of the Supreme Court of Missouri.
[For dissenting opinion of MR. JUSTICE FRANKFURTER, see post, p. 524.]
[For opinion of MR. JUSTICE HARLAN, dissenting in this case, see post, p. 559.]
"The Court instructs the jury that under the law applicable to this case it was the duty of the plaintiff to exercise ordinary care for his own safety, at all times, while performing his duties as an employee of the defendant.
"In this connection, the Court instructs the jury that if you find and believe from the evidence that on July 17, 1951 the plaintiff, James C. Rogers, while an employee of the defendant and while burning weeds on a portion of defendant's right-of-way near 'Garner Crossing' near the City of Garner, Arkansas, did move about on said railroad right-of-way with his arm over his eyes, and did move backwards and sidewards without looking in the direction in which he was walking, and if you further find that under the circumstances mentioned in the evidence the plaintiff, in exercising ordinary care for his own safety, could have and should have looked in the direction in which he was walking, but failed to do so and, if you further find that the plaintiff in failing to do so did not exercise ordinary care for his own safety and was guilty of negligence and that such negligence, if any was the sole proximate cause of his injuries, if any, and that such alleged injuries, if any, were not directly contributed to or caused by any negligence of the defendant in any of the particulars submitted to you in other instructions herein, then, in that event, the plaintiff is not entitled to recover against the defendant, and you will find your verdict in favor of the defendant."
Moreover, "[w]hat constitutes negligence for the statute's purposes is a federal question, not varying in accordance with the differing conceptions of negligence applicable under state and local laws for other purposes. Federal decisional law formulating and applying the concept governs." Urie v. Thompson, 337 U.S. 163, 174.
The Court found that no question for the jury was presented, and affirmed in the following cases: Moore v. Chesapeake & O. R. Co., 340 U.S. 573; Eckenrode v. Pennsylvania R. Co., 335 U.S. 329; Brady v. Southern R. Co., 320 U.S. 476.