MR. JUSTICE DOUGLAS announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE CLARK and MR. JUSTICE BRENNAN join.
Petitioner was injured in 1950 while serving as a second baker on respondent's passenger ship Brazil. Among his duties, he was required to fill orders of the ship's waiters for ice cream. On the day of the accident, he had received an order from a ship's waiter for 12 portions of ice cream. When he got half way down in the two-and-one-half-gallon ice-cream container from which he was
Petitioner brought this suit under the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, to recover for his injuries, which were alleged to be the result of respondent's negligence. At the close of petitioner's case, respondent's motion for a directed verdict was denied. Respondent offered no evidence. After the jury returned a verdict of $17,500 for the petitioner, respondent moved to set aside the verdict. This motion was also denied and judgment entered for the petitioner in accordance with the jury verdict. The Court of Appeals reversed, holding that it was "not within the realm of reasonable foreseeability" that petitioner would use the knife to chip the frozen ice cream. 228 F.2d 891, 892. We granted certiorari. 351 U.S. 936.
We conclude that there was sufficient evidence to take to the jury the question whether respondent was negligent in failing to furnish petitioner with an adequate tool with which to perform his task.
Petitioner testified that the hard ice cream could have been loosened safely with an ice chipper. He had used such an instrument for that purpose on other ships. He was not, however, furnished such an instrument. There was evidence that the scoop with which he had been furnished was totally inadequate to remove ice cream of the consistency of that which he had to serve. And, there was evidence that its extremely hard consistency was produced by the failure of another member of the crew
Respondent urges that it was not reasonably foreseeable that petitioner would utilize the knife to loosen the ice cream. But the jury, which plays a pre-eminent role in these Jones Act cases (Jacob v. New York City, 315 U.S. 752; Schulz v. Pennsylvania R. Co., 350 U.S. 523), could conclude that petitioner had been furnished no safe tool to perform his task. It was not necessary that respondent be in a position to foresee the exact chain of circumstances which actually led to the accident. The jury was instructed that it might consider whether respondent could have anticipated that a knife would be used to get out the ice cream. On this record, fair-minded men could conclude that respondent should have foreseen that petitioner might be tempted to use a knife to perform his task with dispatch, since no adequate implement was furnished him. See Schulz v. Pennsylvania R. Co., 350 U.S. 523, 526. Since the standard of liability under the Jones Act is that established by Congress under the Federal Employers' Liability Act, what we said in Rogers v. Missouri Pacific R. Co., ante, p. 500, decided this day, is relevant here:
Because the jury could have so concluded, the Court of Appeals erred in holding that respondent's motion for a directed verdict should have been granted. "Courts
MR. JUSTICE BURTON concurs in the result.
MR. JUSTICE REED would affirm the judgment of the Court of Appeals.
MR. JUSTICE BLACK took no part in the consideration or decision of this case.
MR. JUSTICE FRANKFURTER, dissenting.
In so discharging his judicial responsibility, Mr. Justice Brandeis did not disclose an idiosyncrasy in a great judge. His attitude expressed respect for the standards
One field of conspicuous disregard of these vital considerations is that large mass of cases under the Federal Employers' Liability Act in which the sole issue is the sufficiency of the evidence for submission to the jury.
But there is a more basic reason why the "integrity of the certiorari process" does not require me to vote on the merits of these cases. The right of a Justice to dissent from an action of the Court is historic. Of course self-restraint should guide the expression of dissent. But dissent is essential to an effective judiciary in a democratic society, and especially for a tribunal exercising the powers of this Court. Not four, not eight, Justices can require another to decide a case that he regards as not properly before the Court. The failure of a Justice to persuade his colleagues does not require him to yield to their views, if he has a deep conviction that the issue is sufficiently important. Moreover, the Court operates ultimately by majority. Even though a minority may bring a case here for oral argument, that does not mean that the majority has given up its right to vote on the ultimate disposition of the case as conscience directs. This is not a novel doctrine. As a matter of practice, members of the Court have at various times exercised this right of refusing to pass on the merits of cases that in their view should not have been granted review.
This does not make the "rule of four" a hollow rule. I would not change the practice. No Justice is likely to vote to dismiss a writ of certiorari as improvidently granted after argument has been heard, even though he has not been convinced that the case is within the rules of the Court governing the granting of certiorari.
The "rule of four" is not a command of Congress. It is working rule devised by the Court as a practical mode of determining that a case is deserving of review, the theory being that if four Justices find that a legal question of general importance is raised, that is ample proof that the question has such importance. This is a fair enough rule of thumb on the assumption that four Justices find such importance on an individualized screening of the cases sought to be reviewed. The reason for deference to a minority view no longer holds when a class of litigation is given a special and privileged position.
The history of the Federal Employers' Liability Act reveals the continuing nature of the problem of review by this Court of the vast litigation under that Act in both the federal and state courts. The initial Federal Employers' Liability Act, 34 Stat. 232, was declared unconstitutional in the first Employers' Liability Cases, 207 U.S. 463. The second Employers' Liability Act, 35 Stat. 65, drafted to meet the constitutional infirmity found in the first Act, was sustained in the Second Employers' Liability Cases, 223 U.S. 1. Under the general statutory scheme of review of litigation by the Supreme Court in force at that time, all cases arising
To relieve the Court of this burden of reviewing the large volume of insignificant litigation under the Federal Employers' Liability Act was one of the principal reasons for passage of the Act of September 6, 1916, 39 Stat. 726. See S. Rep. No. 775, 64th Cong., 1st Sess.; H.R. Rep. No. 794, 64th Cong., 1st Sess. In thus freeing the Court from unrestricted access to it of cases that have no business here, Congress assimilated Federal Employers' Liability Act litigation to those other categories of cases— e. g., diversity, patent, admiralty, criminal cases—that Congress had in 1891, 26 Stat. 826, 828, withdrawn from this Court's obligatory jurisdiction. Believing review in the state appellate systems or in the newly created Circuit Courts of Appeals sufficient, it made the lower courts' decisions final also in this class of litigation in all but the unusual cases raising significant legal questions. Thereafter such cases could be reviewed by the Supreme Court only on certiorari to "secure uniformity of decision" between the Circuit Courts of Appeals and "to bring up cases involving questions of importance which it is in the public interest to have decided by this Court of last resort. The jurisdiction was not conferred upon this Court merely to give the defeated party in the Circuit Court of Appeals another hearing. . . . These remarks, of course, apply
The vast extension of discretionary review by the Supreme Court on writ of certiorari contained in the Judges Bill of 1925, 43 Stat. 936, led the Court to promulgate formal rules, and not rely on admonitions in opinions. regarding conditions under which petitions for certiorari would be granted. The present Rule 19 of the Revised Rules of the Supreme Court contains the substance of the original Rule 35 (5) of the Revised Rules of 1925, 266 U.S. 645, 681, and perhaps in view of the issue in these cases it is not unwarranted to set forth the full text of that rule:
Of course, cases raising questions that are not evidentiary, questions that fairly involve the construction or scope of the statute are appropriate for review here. See, e. g., Minneapolis & St. L. R. Co. v. Bombolis, 241 U.S. 211; Southern Pacific Co. v. Gileo, 351 U.S. 493; Reed v. Pennsylvania R. Co., 351 U.S. 502. But the ordinary negligence case under the Federal Employers' Liability Act does not satisfy the criteria that define the "special and important reasons" when a writ of certiorari will be granted, and this may perhaps best be appreciated by summarizing the course of proceedings in each of the four cases now before us.
In No. 28, the petitioner brought suit for damages, alleging negligence on the part of respondent railroad in providing an unsafe place to work and an unsafe method
On appeal, the Missouri Supreme Court reversed. 284 S.W.2d 467. Considering the evidence from a standpoint most favorable to the petitioner, it held that there was insufficient evidence of negligence on the part of respondent, and that even if there were sufficient evidence of negligence, there was no evidence to show that such negligence contributed to petitioner's injury.
In No. 42, petitioner brought suit for injuries suffered as a result of respondent railroad's alleged failure to use ordinary care in furnishing him with a reasonably safe place to work. There was little dispute over the circumstances of the accident, which are set forth in the opinion of the Court of Appeals for the Seventh Circuit, 228 F.2d 257, 258:
Defendant's motions for a directed verdict at the close of petitioner's case and at the close of all the evidence were denied, and the jury returned a verdict for petitioner. The Court of Appeals reversed. It held that the possibility that "defendant placed the clinker in its roadbed as a part of the ballast used in the repair operation is merely one of several possibilities present. A finding that it did so can rest on nothing but speculation." The Court of Appeals also stated that "there is a total want of evidence as to what constitutes reasonable prudence under the proved circumstances," and that the record "is equally lacking in evidence to prove that defendant had actual or constructive notice of the dangerous condition." Id., at 259, 260.
In No. 46, petitioner appealed to the Court of Appeals for the Sixth Circuit from a directed verdict for respondent
No. 59 was an appeal under the Jones Act, 41 Stat. 1007, 46 U. S. C. § 688, whose standard of liability is explicitly that of the Federal Employers' Liability Act in this type of case; this case therefore presents the same problem for the Court as the other three. Petitioner had obtained a judgment, which was reversed by the Court of Appeals for the Second Circuit for failure of proof of negligence. The facts and reasons for reversal are set forth in the opinion of that court:
In all good conscience, what "special and important" reason for granting certiorari do the facts in any one of these cases disclose? In three of them, the trial judge had allowed a case to go to the jury, and three unanimous reviewing courts—two Courts of Appeals and one state Supreme Court—had reversed for lack of evidence. In each of these cases, this Court has combed the record and found that there was sufficient evidence for the case to go to the jury, although in No. 28 the Court found evidence of negligence in the fact that "[c]ommon experience" teaches "that a passing train will fan the flames of a fire," whereas in No. 46 the Court found insufficiency of evidence to go to the jury because "there is no evidence to
In any event, the Court in these four cases has merely reviewed evidence that has already been reviewed by two lower courts, and in so doing it ignores its own strictures to the bar that "We do not grant a certiorari to review evidence and discuss specific facts." United States v. Johnston, 268 U.S. 220, 227. See also Houston Oil Co. v. Goodrich, 245 U.S. 440; Southern Power Co. v. North Carolina Public Service Co., 263 U.S. 508; General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 178. Constant complaints have been made by successive Chief Justice about the large number of frivolous petitions that are filed each Term, "frivolous" meaning that the issues are not deserving of consideration for review when judged by the Court's instructions to the bar. See the remarks of Chief Justice Taft, in 35 Yale L. J. 1, 3-4; Chief Justice Hughes, in 20 A. B. A. J. 341; Chief Justice Vinson, in 69 S. Ct. V, VI-VII. If the Court does not abide by its Rules, how can it expect the bar to do so? Standards must be enforced to be respected. If they are merely left as something on paper, they might as well be written on water.
The rule that the Court does not grant certiorari to review evidence is a wise rule, indeed indispensable to the work of the Court, and is as equally applicable to negligence cases as to any other type of case. Perhaps a word should be said about the basis of the cause of action under the Federal Employers' Liability Act. Liability under the Act is based on negligence.
The 1908 Act denied the railroads the benefit of certain common-law defenses and the 1939 amendment, 53 Stat. 1404, abolished the defense of assumption of risk, but the fact that a right to recover is not barred by what theretofore was a defense does not change the basis of the right. This has been recognized in the opinions of this Court in which it has reversed lower courts on the question of the sufficiency of the evidence. The Court has never intimated that the concept of negligence, undefined in the statute, has some special or esoteric content as used in the Act or is anything other than a statutory absorption of the common-law concept.
"One's deep sympathy is of course aroused by a victim of the hazards of negligence litigation in situations like the one before us. But the remedy for an obsolete and uncivilized system of compensation for loss of life or limb of crews on ships and trains is not intermittent disregard of the considerations which led Congress to entrust this Court with the discretion of certiorari jurisdiction. The remedy is an adequate and effective system of workmen's
Rather than paraphrase, I shall repeat what I have already said about negligence cases and certiorari policy in Wilkerson v. McCarthy, 336 U.S. 53, 64, 66: "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
The Court finds justification for granting certiorari in an alleged conflict of these decisions of the Courts of Appeals for the Second, Sixth, and Seventh Circuits and the Supreme Court of Missouri with the applicable decisions
This is not the supreme court of review for every case decided "unjustly" by every court in the country. The
It is not enough, however, to deal with this problem on an abstract, theoretical basis. The statistical history of the Federal Employers' Liability Act, as set forth in the tables in the appendices to this opinion, gives concrete evidence of the recurring nature of the problem and the time-consuming nature of the litigation. In the early years of the Act, when review by this Court was on writ of error, there was a large number of cases in which sufficiency of evidence was at issue. Contrary to general belief, however, employees fared well in this type of case. Of the 42 cases decided by the Court raising that issue,
Once easy access to this Court was shut off by the discretionary power of review over these cases that was given to the Court in 1916, few FELA decisions were rendered, and only four, of which one was on writ of error, dealing with the sufficiency of the evidence, in the five-year period covered by the 1918 through the 1922 Terms. During the next ten years, however, the Court concerned itself more and more with the Act, but during this era the railroads tended to prevail. Thirty-five decisions were rendered from the 1923 Term through the 1932 Term. In 27 of these a judgment for a plaintiff was reversed for evidentiary reasons; in another the Court affirmed the reversal of a judgment for a plaintiff; and in another the Court reversed the reversal of a directed verdict for a railroad. (For a review of certiorari policy under the FELA during this period, see Frankfurter and Landis, Business of the Supreme Court at October Term, 1931, 46 Harv. L. Rev. 226, 240-253.)
Thereafter, during the remaining eight Terms of Mr. Chief Justice Hughes, the number of sufficiency-of-the-evidence cases under the Act that were granted review fell off considerably. Only seven decisions were rendered during that period. The next nine-year period, however, saw a large increase again, with 27 decisions during the 1941 through 1949 Terms. Unlike the previous experience with the Act, it was not efforts of railroads seeking to reverse judgments in favor of injured workers that constituted the major portion of the business during this period, but rather efforts by injured workers to upset judgments for railroads. And they were successful. Judgments for railroads were sustained in only four
In the following four Terms, business again slackened and only two cases concerning sufficiency of the evidence were decided under the Act. We now seem to have entered again on a period of renewed activity by the Court in this field. Two decisions were rendered in the 1954 Term, three in the 1955 Term, four thus far this Term, and two additional petitions for certiorari have already been granted this Term.
A further indication of the tendency in recent Court decisions is provided by a study of petitions for certiorari in FELA cases from the 1938 through the 1954 Terms. This study disclosed that of the 260 petitions filed, sufficiency of the evidence of negligence or of causation for submission to the jury was the predominant question in 149. Seventy-eight of these petitions were filed by the employee and all of the 37 granted petitions were from this group, except one in which the writ was later dismissed as improvidently granted. McCarthy v. Bruner, certiorari granted, 322 U.S. 718, certiorari dismissed, 323 U.S. 673. Certiorari Policy in FELA Cases, 69 Harv. L. Rev. 1441, 1445-1446.
These figures tell only a small part of the story. While this opinion concerns itself principally with cases under the Federal Employers' Liability Act, the same kind of question arises under many other statutes. See footnote 2, supra. And experience leaves no doubt, though the fact cannot be established statistically, that by granting review in these cases, the Court encourages the filing of petitions for certiorari in other types of cases raising issues that likewise have no business to be brought here. Moreover, the considerations governing discharge of the Court's function involve only in part quantitative factors. Finally, and most important, granting review in
It is impossible to read the 106 written opinions of the Supreme Court dealing with this type of issue, see Appendices A and B, without feeling that during different periods the Court, while using the same generalities in speaking about the relation of judge and jury to the cause of action for negligence, has applied those principles differently from time to time to the facts of different cases. The divided views on this Court today with respect to the application of those principles merely reflect the divided views of state and federal judges throughout the country on problems of negligence. As long as there is a division of functions between judge and jury, there will be division of opinion concerning the correctness of trial judges' actions in individual cases. But since the law obviously does not remain "settled" in this field very long, one does not have to be a prophet to be confident that the Court, if it continues its present certiorari policy, will one day return to its attitude of the 1920's in these individual cases. With a changed membership, the Court might tomorrow readily affirm all four of the cases that it decides today. There is nothing in the Federal Employers' Liability Act to say which view is correct. The Act expressed a social policy, and it expressed that policy in terms of a familiar, but elusively inapt, common-law cause of action. It is suggested in effect that the history of FELA litigation in this Court reveals a shift in mood, philosophy if one pleases, towards the Federal Employers' Liability Act—
This unvarnished account of Federal Employers' Liability Act litigation in this Court relating to sufficiency of the evidence for submission of cases to the jury is surely not an exhilarating story. For the Supreme Court of the United States to spend two hours of solemn argument, plus countless other hours reading the briefs and record and writing opinions, to determine whether there was evidence to support an allegation that it could reasonably be foreseen that an ice-cream server on a ship would use a butcher's knife to scoop out ice cream that was too hard to be scooped with a regular scoop, is surely to misconceive the discretion that was entrusted to the wisdom of the Court for the control of its calendar. The Court may or may not be "doing justice" in the four insignificant cases it decides today; it certainly is doing injustice to the significant and important cases on the calendar and to its own role as the supreme judicial body of the country.
It is, I believe, wholly accurate to say that the Court will be enabled to discharge adequately the vital, and, I feel, the increasingly vital, responsibility it bears for the
For one thing, as the current United States Reports compared with those of even a generation ago amply prove, the types of cases now calling for decision to a considerable extent require investigation of voluminous literature far beyond the law reports and other legal writings. If it is to yield its proper significance, this vast mass of materials, often confused and conflicting, must be passed through the sieve of reflection. Judicial reflection is a process that requires time and freedom from the pressure of having more work to do than can be well done. It is not a bit of quixotism to believe that, of the 63 cases scheduled for argument during the remaining months of this Term, there are a half dozen that could alone easily absorb the entire thought of the Court for the rest of the Term.
The judgments of this Court are collective judgments. Such judgments are especially dependent on ample time for private study and reflection in preparation for discussion in Conference. Without adequate study, there cannot be adequate reflection; without adequate reflection, there cannot be adequate discussion; without adequate discussion, there cannot be that full and fruitful interchange of minds that is indispensable to wise decisions and persuasive opinions by the Court. Unless the Court vigorously enforces its own criteria for granting review of
I would dismiss all four writs of certiorari as improvidently granted.
[For opinion of MR. JUSTICE HARLAN, see post, p. 559.]
DECISIONS RELATING TO SUFFICIENCY OF THE EVIDENCE UNDER THE FELA, TERM BY TERM.* 1911 . . . . . . . . 1 1918 . . . . . . . . 1 1912 . . . . . . . . 2 1919 . . . . . . . . 2 1913 . . . . . . . . 4 1920 . . . . . . . . 1 1914 . . . . . . . . 4 1921 . . . . . . . . 0 1915 . . . . . . . . 19 1922 . . . . . . . . 0 1916 . . . . . . . . 6 1923 . . . . . . . . 3** 1917 . . . . . . . . 5 1924 . . . . . . . . 2
1925 . . . . . . . . 4 1941 . . . . . . . . 1** 1926 . . . . . . . . 0 1942 . . . . . . . . 3 1927 . . . . . . . . 6 1943 . . . . . . . . 2 1928 . . . . . . . . 6** 1944 . . . . . . . . 2 1929 . . . . . . . . 4 1945 . . . . . . . . 3** 1930 . . . . . . . . 1 1946 . . . . . . . . 4** 1931 . . . . . . . . 7 1947 . . . . . . . . 4** 1932 . . . . . . . . 2 1948 . . . . . . . . 6** 1933 . . . . . . . . 1 1949 . . . . . . . . 2 1934 . . . . . . . . 1 1950 . . . . . . . . 1 1935 . . . . . . . . 1 1951 . . . . . . . . 0 1936 . . . . . . . . 0 1952 . . . . . . . . 1 1937 . . . . . . . . 0 1953 . . . . . . . . 0 1938 . . . . . . . . 1 1954 . . . . . . . . 2** 1939 . . . . . . . . 1** 1955 . . . . . . . . 3** 1940 . . . . . . . . 2** 1956 . . . . . . . . 4 * This table restricts itself to decisions on the sufficiency of the evidence relating to the substantive cause of action for submission to the jury. It does not take into account other sufficiency-of-the-evidence cases, e. g., was an employee engaged in interstate commerce, that raise somewhat different problems but are all too often also outside the appropriate bounds of certiorari jurisdiction. In some of the cases resulting in an affirmance of a judgment for an employee, sufficiency of the evidence was only one of the questions considered. It is impossible to ascertain why certiorari was granted, but these cases are included in the table because the Court did not restrict its grant of certiorari to the other issues, as it frequently does, and did consider the sufficiency-of-the-evidence question. ** These figures include 1 summary per curiam disposition on the merits in the 1923 Term, 1 in the 1928 Term, 1 in the 1939 Term, 1 in the 1940 Term, 1 in the 1941 Term, 2 in the 1945 Term, 1 in the 1946 Term, 4 in the 1947 Term, 2 in the 1948 Term, 2 in the 1954 Term, and 3 in the 1955 Term. See 69 Harv. L. Rev. 1441, 1446, n. 30. The Reports have not been examined for summary dispositions on the merits prior to 1938. That practice did not become established in these cases until then, and prior to that time was at most desultory.
DECISIONS RELATING TO SUFFICIENCY OF THE EVIDENCE UNDER THE FEDERAL EMPLOYERS' LIABILITY ACT.
(*Indicates Summary Disposition Per Curiam.)
Texas & P. R. Co. v. Howell, 224 U.S. 577; affirmance of judgment for plaintiff affirmed.
Troxell v. Delaware, L. & W. R. Co., 227 U.S. 434; reversal of judgment for plaintiff reversed.
Norfolk & W. R. Co. v. Earnest, 229 U.S. 114; judgment for plaintiff affirmed.
Young v. Central R. Co. of N. J., 232 U.S. 602; remand for entry of judgment n. o. v. for defendant modified and affirmed.
Grand Trunk Western R. Co. v. Lindsay, 233 U.S. 42; affirmance of judgment for plaintiff affirmed.
Southern R. Co. v. Bennett, 233 U.S. 80; affirmance of judgment for plaintiff affirmed.
Southern R. Co. v. Gadd, 233 U.S. 572; affirmance of judgment for plaintiff affirmed.
Yazoo & M. V. R. Co. v. Wright, 235 U.S. 376; affirmance of judgment for plaintiff affirmed.
McGovern v. Philadelphia & R. R. Co., 235 U.S. 389; directed verdict for defendant reversed.
Seaboard Air Line R. Co. v. Padgett, 236 U.S. 668; affirmance of judgment for plaintiff affirmed.
Central Vermont R. Co. v. White, 238 U.S. 507; affirmance of judgment for plaintiff affirmed.
Chicago, R. I. & P. R. Co. v. Devine, 239 U.S. 52; affirmance of judgment for plaintiff affirmed.
Seaboard Air Line R. Co. v. Koennecke, 239 U.S. 352; affirmance of judgment for plaintiff affirmed.
Reese v. Philadelphia & R. R. Co., 239 U.S. 463; affirmance of nonsuit affirmed.
Chicago, R. I. & P. R. Co. v. Wright, 239 U.S. 548; affirmance of judgment for plaintiff affirmed.
Kanawha & M. R. Co. v. Kerse, 239 U.S. 576; judgment for plaintiff affirmed.
Seaboard Air Line R. Co. v. Horton, 239 U.S. 595; affirmance of judgment for plaintiff affirmed.
Great Northern R. Co. v. Wiles, 240 U.S. 444; reversal of judgment n. o. v. for defendant reversed.
Great Northern R. Co. v. Knapp, 240 U.S. 464; affirmance of judgment for plaintiff affirmed.
Jacobs v. Southern R. Co., 241 U.S. 229; affirmance of judgment for defendant affirmed.
Baugham v. New York, P. & N. R. Co., 241 U.S. 237; affirmance of judgment for defendant affirmed.
Louisville & N. R. Co. v. Stewart, 241 U.S. 261; affirmance of judgment for plaintiff affirmed.
Seaboard Air Line R. Co. v. Renn, 241 U.S. 290; affirmance of judgment for plaintiff affirmed.
Chesapeake & O. R. Co. v. De Atley, 241 U.S. 310; affirmance of judgment for plaintiff reversed.
Southern R. Co. v. Gray, 241 U.S. 333; affirmance of judgment for plaintiff reversed.
Chesapeake & O. R. Co. v. Proffitt, 241 U.S. 462; affirmance of judgment for plaintiff affirmed.
Chicago & N. W. R. Co. v. Bower, 241 U.S. 470; affirmance of judgment for plaintiff affirmed.
San Antonio & A. P. R. Co. v. Wagner, 241 U.S. 476; affirmance of judgment for plaintiff affirmed.
Spokane & I. E. R. Co. v. Campbell, 241 U.S. 497; affirmance of judgment for plaintiff affirmed.
Atlantic City R. Co. v. Parker, 242 U.S. 56; affirmance of judgment for plaintiff affirmed.
Baltimore & O. R. Co. v. Whitacre, 242 U.S. 169; affirmance of judgment for plaintiff affirmed.
St. Joseph & G. I. R. Co. v. Moore, 243 U.S. 311; affirmance of judgment for plaintiff affirmed.
Southern R. Co. v. Puckett, 244 U.S. 571; affirmance of judgment for plaintiff affirmed.
Washington R. & Elec. Co. v. Scala, 244 U.S. 630; affirmance of judgment for plaintiff affirmed.
Boldt v. Pennsylvania R. Co., 245 U.S. 441; affirmance of judgment for defendant affirmed.
Union Pacific R. Co. v. Huxoll, 245 U.S. 535; affirmance of judgment for plaintiff affirmed.
Great Northern R. Co. v. Donaldson, 246 U.S. 121; affirmance of judgment for plaintiff affirmed.
Nelson v. Southern R. Co., 246 U.S. 253; reversal of judgment for plaintiff affirmed.
Union Pacific R. Co. v. Hadley, 246 U.S. 330; affirmance of judgment for plaintiff affirmed.
Gillis v. New York, N. H. & H. R. Co., 249 U.S. 515; affirmance of directed verdict for defendant affirmed.
Chicago, R. I. & P. R. Co. v. Ward, 252 U.S. 18; affirmance of judgment for plaintiff affirmed.
Boehmer v. Pennsylvania R. Co., 252 U.S. 496; affirmance of directed verdict for defendant affirmed.
Southern Pacific Co. v. Berkshire, 254 U.S. 415; affirmance of judgment for plaintiff reversed.
Frese v. Chicago, B. & Q. R. Co., 263 U.S. 1; reversal of judgment for plaintiff affirmed.
Davis v. Matthews, 263 U.S. 686;[*] affirmance of judgment for plaintiff affirmed.
Davis v. Kennedy, 266 U.S. 147; affirmance of judgment for plaintiff reversed.
Baltimore & O. R. Co. v. Groeger, 266 U.S. 521; affirmance of judgment for plaintiff reversed for new trial; evidence found sufficient for submission to jury.
Minneapolis, St. P. & S. S. M. R. Co. v. Goneau, 269 U.S. 406; affirmance of judgment for plaintiff affirmed.
Chesapeake & O. R. Co. v. Nixon, 271 U.S. 218; affirmance of judgment for plaintiff reversed.
St. Louis-San Francisco R. Co. v. Mills, 271 U.S. 344; affirmance of judgment for plaintiff reversed.
Chicago, M. & St. P. R. Co. v. Coogan, 271 U.S. 472; affirmance of judgment for plaintiff reversed.
Atlantic Coast Line R. Co. v. Southwell, 275 U.S. 64; affirmance of judgment for plaintiff reversed.
Missouri Pacific R. Co. v. Aeby, 275 U.S. 426; affirmance of judgment for plaintiff reversed.
Gulf, M. & N. R. Co. v. Wells, 275 U.S. 455; affirmance of judgment for plaintiff reversed.
Toledo, St. L. & W. R. Co. v. Allen, 276 U.S. 165; affirmance of judgment for plaintiff reversed.
Kansas City Southern R. Co. v. Jones, 276 U.S. 303; affirmance of judgment for plaintiff reversed.
Chesapeake & O. R. Co. v. Leitch, 276 U.S. 429; affirmance of judgment for plaintiff reversed.
Unadilla Valley R. Co. v. Caldine, 278 U.S. 139; affirmance of judgment for plaintiff reversed.
Western & A. R. Co. v. Hughes, 278 U.S. 496; affirmance of judgment for plaintiff reversed.
Atlantic Coast Line R. Co. v. Tyner, 278 U.S. 565;[*] affirmance of judgment for plaintiff reversed.
Delaware, L. & W. R. Co. v. Koske, 279 U.S. 7; affirmance of judgment for plaintiff reversed.
Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34; affirmance of judgment for plaintiff reversed.
Atlantic Coast Line R. Co. v. Driggers, 279 U.S. 787; affirmance of judgment for plaintiff reversed.
Chesapeake & O. R. Co. v. Mihas, 280 U.S. 102; affirmance of judgment for plaintiff reversed.
New York Central R. Co. v. Ambrose, 280 U.S. 486; affirmance of judgment for plaintiff reversed.
New York Central R. Co. v. Marcone, 281 U.S. 345; affirmance of judgment for plaintiff affirmed.
Atchison, T. & S. F. R. Co. v. Toops, 281 U.S. 351; affirmance of judgment for plaintiff reversed.
Atlantic Coast Line R. Co. v. Powe, 283 U.S. 401; affirmance of judgment for plaintiff reversed.
Chesapeake & O. R. Co. v. Kuhn, 284 U.S. 44; affirmance of judgment for plaintiff reversed.
Atchison, T. & S. F. R. Co. v. Saxon, 284 U.S. 458; affirmance of judgment for plaintiff reversed.
Missouri Pacific R. Co. v. David, 284 U.S. 460; affirmance of judgment for plaintiff reversed.
Southern R. Co. v. Youngblood, 286 U.S. 313; affirmance of judgment for plaintiff reversed.
Southern R. Co. v. Dantzler, 286 U.S. 318; affirmance of judgment for plaintiff reversed.
St. Louis S. W. R. Co. v. Simpson, 286 U.S. 346; affirmance of judgment for plaintiff reversed.
Rocco v. Lehigh Valley R. Co., 288 U.S. 275; reversal of judgment for plaintiff reversed.
Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333; reversal of directed verdict for defendant reversed.
Northwestern Pacific R. Co. v. Bobo, 290 U.S. 499; affirmance of judgment for plaintiff reversed.
Swinson v. Chicago, St. P., M. & O. R. Co., 294 U.S. 529; directed verdict for defendant reversed.
Chicago G. W. R. Co. v. Rambo, 298 U.S. 99; affirmance of judgment for plaintiff reversed.
Great Northern R. Co. v. Leonidas, 305 U.S. 1; affirmance of judgment for plaintiff affirmed.
Keys v. Pennsylvania R. Co., 308 U.S. 529;[*] reversal of judgment for plaintiff reversed.
Jenkins v. Kurn, 313 U.S. 256; reversal of judgment for plaintiff reversed.
Steeley v. Kurn, 313 U.S. 545;[*] reversal of judgment for plaintiff reversed.
Seago v. New York Central R. Co., 315 U.S. 781;[*] affirmance of judgment for defendant reversed.
Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54; affirmance of directed verdict for defendant reversed.
Bailey v. Central Vermont R. Co., 319 U.S. 350; reversal of judgment for plaintiff reversed.
Owens v. Union Pacific R. Co., 319 U.S. 715; reversal of judgment for plaintiff reversed.
Brady v. Southern R. Co., 320 U.S. 476; reversal of judgment for plaintiff affirmed.
Tennant v. Peoria & P. U. R. Co., 321 U.S. 29; reversal of judgment for plaintiff reversed.
Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574; reversal of judgment for plaintiff reversed.
Blair v. Baltimore & O. R. Co., 323 U.S. 600; reversal of entry of judgment for defendant reversed; sufficient evidence to support jury verdict for plaintiff.
Keeton v. Thompson, 326 U.S. 689;[*] reversal of judgment for plaintiff reversed.
Cogswell v. Chicago & E. I. R. Co., 328 U.S. 820;[*] reversal of judgment for plaintiff reversed.
Jesionowski v. Boston & M. R. Co., 329 U.S. 452; reversal of judgment for plaintiff reversed.
Ellis v. Union Pacific R. Co., 329 U.S. 649; reversal of judgment for plaintiff reversed.
Pauly v. McCarthy, 330 U.S. 802;[*] reversal of judgment for plaintiff reversed.
Myers v. Reading Co., 331 U.S. 477; affirmance of judgment n. o. v. for defendant reversed.
Lillie v. Thompson, 332 U.S. 459;[*] affirmance of dismissal of complaint reversed.
Hunter v. Texas Electric R. Co., 332 U.S. 827;[*] affirmance of judgment for defendant affirmed.
Anderson v. Atchison, T. & S. F. R. Co., 333 U.S. 821;[*] affirmance of judgment for defendant reversed.
Eubanks v. Thompson, 334 U.S. 854;[*] reversal of judgment for plaintiff reversed.
Eckenrode v. Pennsylvania R. Co., 335 U.S. 329; affirmance of judgment n. o. v. for defendant affirmed.
Coray v. Southern Pacific Co., 335 U.S. 520; affirmance of directed verdict for defendant reversed.
Penn v. Chicago & N. W. R. Co., 335 U.S. 849;[*] reversal of judgment for plaintiff reversed.
Wilkerson v. McCarthy, 336 U.S. 53; affirmance of directed verdict for defendant reversed.
Hill v. Atlantic Coast Line R. Co., 336 U.S. 911;[*] affirmance of nonsuit reversed.
Carter v. Atlanta & St. A. B. R. Co., 338 U.S. 430; affirmance of judgment for defendant reversed.
Affolder v. New York, C. & St. L. R. Co., 339 U.S. 96; reversal of judgment for plaintiff reversed.
Moore v. Chesapeake & O. R. Co., 340 U.S. 573; affirmance of judgment for defendant n. o. v. affirmed.
Stone v. New York, C. & St. L. R. Co., 344 U.S. 407; reversal of judgment for plaintiff reversed.
Smalls v. Atlantic Coast Line R. Co., 348 U.S. 946;[*] reversal of judgment for plaintiff reversed.
O'Neill v. Baltimore & O. R. Co., 348 U.S. 956;[*] reversal of judgment for plaintiff reversed.
Anderson v. Atlantic Coast Line R. Co., 350 U.S. 807;[*] reversal of judgment for plaintiff reversed.
Strickland v. Seaboard Air Line R. Co., 350 U.S. 893;[*] reversal of judgment for plaintiff reversed.
Cahill v. New York, N. H. & H. R. Co., 350 U.S. 898,[*] 351 U.S. 183; reversal of judgment for plaintiff reversed.
I am in full agreement with what my Brother FRANKFURTER has written in criticism of the Court's recurring willingness to grant certiorari in cases of this type. For the reasons he has given, I think the Court should not have heard any of these four cases. Nevertheless, the cases having been taken, I have conceived it to be my duty to consider them on their merits, because I cannot reconcile voting to dismiss the writs as "improvidently granted" with the Court's "rule of four." In my opinion due adherence to that rule requires that once certiorari has been granted a case should be disposed of on the premise that it is properly here, in the absence of considerations appearing which were not manifest or fully apprehended at the time certiorari was granted. In these instances I am unable to say that such considerations exist, even though I do think that the arguments on the merits underscored the views of those of us who originally felt that the cases should not be taken because they involved only issues of fact, and presented nothing of sufficient general importance to warrant this substantial expenditure of the Court's time.
I do not think that, in the absence of the considerations mentioned, voting to dismiss a writ after it has been granted can be justified on the basis of an inherent right of dissent. In the case of a petition for certiorari that right, it seems to me—again without the presence of intervening factors—is exhausted once the petition has
My Brother FRANKFURTER states that the course he advocates will not result in making of the "rule of four" an empty thing, suggesting that in individual cases "a doubting Justice" will normally respect "the judgment of his brethren that the case does concern issues important enough for the Court's consideration and adjudication," and that it is only "when a class of cases is systematically taken for review" that such a Justice "cannot forego his duty to voice his dissent to the Court's action." However, it seems to me that it is precisely in that type of situation where the exercise of the right of dissent may well result in nullification of the "rule of four" by the action of five Justices. For differences of view as to the desirability of the Court's taking particular "classes" of cases—the situation we have here—are prone to lead to more or less definite lines of cleavage among the Justices, which past experience has shown may well
Although I feel strongly that cases of this kind do not belong in this Court, I can see no other course, consistent with the "rule of four," but to continue our Conference debates, with the hope that persuasion or the mounting calendars of the Court will eventually bring our differing brethren to another point of view.
Since I can find no intervening circumstances which would justify my voting now to dismiss the writs in these cases as improvidently granted, I turn to the merits of the four cases before us. I agree with, and join in, the Court's opinion in No. 46. I dissent in Nos. 28, 42 and 59. No doubt the evidence in the latter three cases can be viewed both as the three courts below did and as this Court does. So far as I can see all this Court has done is to substitute its views on the evidence for those of the Missouri Supreme Court and the two Courts of Appeals, and that is my first reason for dissenting. In my view we should not interfere with the decisions of these three courts in the absence of clear legal error, or some capricious or unreasonable action on their part. Nothing of that kind has been shown here. I would apply to cases of this type the reasoning of the Court in Labor Board v. Pittsburgh Steamship Co., 340 U.S. 498,
For my part, to overturn the judgments below simply involves second-guessing the Missouri Supreme Court, the Court of Appeals for the Seventh Circuit, and the Court of Appeals for the Second Circuit, on questions of fact on which they brought to bear judgments neither capricious nor unreasonable, and on which they made a "fair assessment of a record."
I dissent also for another reason. No scientific or precise yardstick can be devised to test the sufficiency of the evidence in a negligence case. The problem has always been one of judgment, to be applied in view of the purposes of the statute. It has, however, been common ground that a verdict must be based on evidence—not on a scintilla of evidence but evidence sufficient to enable a
For these reasons I think the judgments in Nos. 28, 42 and 59, as well as that in No. 46, should be affirmed.
MR. JUSTICE BURTON concurs in Part I of this opinion.
THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK, and MR. JUSTICE BRENNAN concur in Part I of this opinion except insofar as it disapproves of the grant of the writ of certiorari in these cases.