On petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit. Reported below: 241 F.2d 416.
MR. JUSTICE FRANKFURTER is of the opinion that the writ of certiorari should not be granted. Since the writ has been granted, he would dismiss it as improvidently granted for the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524.
Reported below: 241 F.2d 416.
MR. JUSTICE CLARK, dissenting.
As MR. JUSTICE DOUGLAS said in Wilkerson v. McCarthy, 336 U.S. 53, 68 (1949), "The liability which [the FELA] imposed was the liability for negligence." Believing that the Congress was looking to the courts to
see that the railroads were held to strict accountability under the Federal Employers' Liability Act*fn1 for any negligence whatever resulting in injury to an employee, the Court has taken cases that in ordinary course it would have denied as involving only particular facts rather than questions "of importance to the public," Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393 (1923). As in the seamen's Jones Act*fn2 cases, the Court feels a duty under this Federal Act to examine each case to make certain that its mandate is honored.*fn3 There has been no breach in this policy since its establishment soon after the amendment of the Act in 1939. In my opinion, however, the judgment today goes beyond the most generous interpretation that may be given to the Act. The petitioner suffered the grievous injury which resulted in the loss of a leg while using, as a toilet, one of the railroad's cars standing on a switch track. While petitioner was "answering his call of nature" in the car, it moved slightly from a contact with two other cars that were being switched. This contact caused some steel plates in the car to shift, crushing petitioner's right leg.
The Court does not find a failure on the part of the railroad to provide a safe place for the petitioner to work insofar as toilet facilities are concerned. The railroad thus is not found negligent in this respect. But the Court seizes upon a statement in the trial judge's memorandum that "There is evidence that employees sometimes used gondola cars in lieu of toilets. The Court must assume
that this was known to the defendant." The trial judge found, however, that the railroad could not anticipate that this particular gondola car would be used for that purpose because it was loaded with freight -- steel plates -- and was standing on a track that was being used for normal switching operations. The judge points out that petitioner himself thought that the car was empty when he climbed into it. If the car had not been loaded the petitioner would not have suffered the injury which resulted. For these reasons the trial judge found that the railroad could not anticipate that its employee would so use a loaded car or that the resultant injury would occur. In addition, the petitioner had admitted that he "certainly [did] not feel that the yard crew was careless in any manner . . . . This was a very easy impact and the two standing cars did not move over a foot at the most."
In the light of such a record it appears to me that negligence could not be imputed to the railroad. Of course, if the majority is saying that the railroad must inspect every loaded car awaiting switching, lest an employee be using it as a toilet, then I could easily understand the action here. But this it does not say, for it would be not only an unrealistic but an untenable burden to place on the railroad. The Court cites two cases, neither of which appears to me to be apposite. In Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 502 (1957), "petitioner was supplied with a crude hand torch and was instructed to burn off the weeds and vegetation along [the railroad's track]." The mishap occurred while he was performing these services. There was a "likelihood that petitioner . . . would suffer just such an injury as he did." Id., at 504. In Wilkerson v. McCarthy, supra, the railroad ...