361 U.S.

15
80 S.Ct. 22
4 L.Ed.2d 1

Henry J. HARRIS, Petitioner,

v.
PENNSYLVANIA RAILROAD CO.
No. 81.
Decided Oct. 19, 1959.

Mr. Marshall I. Nurenberg, for petitioner.

Mr. Edwin Knachel, for respondent.
PER CURIAM.

The petition for writ of certiorari is granted. The judgment of the Supreme
Court of Ohio is reversed and the case is remanded for proceedings in
conformity with this opinion. We hold that the proofs justified with reason the
jury's conclusion, embodied in answers to Interrogatories to Jury numbers I and
II, that employer negligence played a part in producing the petitioner's injury.
Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.
See also Moore v. Terminal Railroad Ass'n, 358 U.S. 31, 79 S.Ct. 2, 3 L.Ed.2d
25, and cases cited therein. We therefore find it unnecessary to consider the
petitioner's challenge to the Ohio procedure governing interrogatories to the
jury.

For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co.,
352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, Mr. Justice
FRANKFURTER is of the view that the writ of certiorari is improvidently
granted.

Reversed and remanded with directions.

Mr. Justice STEWART took no part in the consideration or decision of this

case.

(For dissenting opinion of Mr. Justice HARLAN, joined by Mr. Justice

WHITTAKER, see 80 S.Ct. 29.)

Mr. Justice DOUGLAS, concurring.

The suggestion that this and related decisions mean that we have eliminated 'all
meaningful judicial supervision over jury verdicts' in FELA, 45 U.S.C.A. 51
et seq., cases prompts me to file this opinion and bring up to date the
compilation which I made in Wilkerson v. McCarthy, 336 U.S. 53, 68, 7173,
69 S.Ct. 413 ,420, 422423, 93 L.Ed. 497. The Wilkerson case was decided
January 31, 1949. The attached Appendix presents a statistical summary1 of our
stewardship of these FELA cases from that date to October 19, 1959.

Of the 110 petitions for certiorari filed during this period of more than 10
years, 73 were filed by employees and 37 were filed by employers. Of these, 33
were granted, each at the instance of an employee who complained of the lower
court's withholding the case from the jury or overturning a jury verdict in his
favor. Thirty cases were reversed for usurpation of the jury function; and in
each of three the lower court's decision was sustained.

Of the 77 petitions denied, 32 were by employees who sought reversal of a

lower court's decision to withhold the case from the jury or to upset a jury's
verdict. Eight more employees wanted this Court to overturn jury verdicts
rendered in the employers' favor.

10

Of the petitions filed by employers, 35 asked this Court to reverse a lower court
decision upholding a jury verdict or holding that the case should have been
submitted to a jury. Employers in two other petitions complained of the lower
court's action in setting aside a jury verdict and granting a new trial.

11

It is apparent from the decisions where we refused to review cases in which

lower courts withheld cases from the jury or set aside jury verdicts (or where,
having granted certiorari, we sustained the lower courts in that action) that the
system of judicial supervision still exists in this as in other types of cases.

12

It is suggested that the Court has consumed too much of its time in reviewing
these FELA cases. An examination of the 33 cases in which the Court has
granted certiorari during the period of over 10 years covered by the attached
Appendix reveals that 16 of these cases were summarily reversed without oral
argument and without full opinions. Only 17 cases were argued during this
period of more than a decade and, of these, 5 were disposed of by brief per

curiam opinions. Only 12 cases in over 10 years were argued, briefed and
disposed of with full opinions by the Court. We have granted certiorari in these
cases on an average of less than 3 per year and have given plenary
consideration to slightly more than 1 per year. Wastage of our time is therefore
a false issue.
13

The difference between the majority and minority of the Court in our treatment
of FELA cases concerns the degree of vigilance we should exercise in
safeguarding the jury trialguaranteed by the Seventh Amendment and part
and parcel of the remedy under this Federal Act when suit is brought in state
courts. See Bailey v. Central Vermont R. Co., 319 U.S. 350, 354, 63 S.Ct.
1062, 1065, 87 L.Ed. 1444; Dice v. Akron, C. & Y.R. Co., 342 U.S. 359, 363,
72 S.Ct. 312, 315, 96 L.Ed. 398. Whether that right has been impaired in a
particular instance often produces a contrariety of views. Yet the practice of the
Court in allowing four out of nine votes to control the certiorari docket is well
established and of long duration.2 Without it, the vast discretion which
Congress allowed us in granting or denying certiorari might not be tolerable.
Every member of the Court has known instances where he has strongly
protested the action of the minority in bringing a case or type of case here for
adjudication. He may then feel that there are more important and pressing
matters to which the Court should give its attention. That is, however, a price
we pay for keeping our promise to Congress3 to let the vote of four Justices
bring up any case here on certiorari. hearings and not secure a decision by the
whole court, it is proper to call attention to the very thorough and complete
system by which discretionary jurisdiction is exercised. In granting or refusing a
prayer for a certiorari the petitioner gets the judgment of the whole court. The
application is not disposed of by a single justice. The luminous and informing
statement of Mr. Justice Van Devanter tells the whole story:

14

"While the authority of the Supreme Court to take cases on petition for
certiorari is spoken of as a discretionary jurisdiction, this does not mean that the
court is authorized merely to exercise a will in the matter but rather that the
petition is to be granted or denied according to a sound judicial discretion.
What actually is done may well be stated here with some particularity. The
party aggrieved by the decision of the circuit court of appeals and seeking a
further review in the Supreme Court is required to present to it a petition and
accompanying brief, setting forth the nature of the case, what questions are
involved, how they were decided in the circuit court of appeals, and why the
case should not rest on the decision of that court. The petition and brief are
required to be served on the other party, and time is given for the presentation
of an opposing brief. When this has been done copies of the printed record as it
came from the circuit court of appeals and of the petition and briefs are

distributed among the members of the Supreme Court, and each judge
examines them and prepares a memorandum or note indicating his view of what
should be done.
15

"In conference these cases are called, each in its turn, and each judge states his
views in extenso or briefly as he thinks proper; and when all have spoken any
difference in opinion is discussed and then a vote is taken. I explain this at
some length because it seems to be thought outside that the cases are referred to
particular judges, as, for instance, that those coming from a particular circuit
are referred to the justice assigned to that circuit, and that he reports on them,
and the others accept his report. That impression is wholly at variance with
what actually occurs.

16

"We do not grant or deny these petitions merely according to a majority vote.
We always grant the petition when as many as four think that it should be
granted and sometimes when as many as three think that way. We proceed
upon the theory that, if that number out of the nine are impressed with the
thought that the case is one that ought to be heard and decided by us, the
petition should be granted." H.R.Rep. No. 1075, 68th Cong., 2d Sess., p. 3.

17

Appendix to Opinion of Mr. Justice DOUGLAS.

18

I. Cases in Which Certiorari Was Granted.

19

A. Where lower court which withheld the case from the jury or set aside a jury
verdict for the employee and ordered a new trial or rendered judgment for the
employer was reversed:

20

Hill v. Atlantic Coast Line R. Co., 336 U.S. 911, 69 S.Ct. 507, 93 L.Ed. 1075.

21

Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282.

22

Brown v. Western R. of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100.

23

Carter v. Atlanta & St. Andrews Bay R. Co., 338 U.S. 430, 70 S.Ct. 226, 94
L.Ed. 236.

24

Stone v. New York, Chicago & St. Louis R. Co., 344 U.S. 407, 73 S.Ct. 358, 97
L.Ed. 441.

25

Harsh v. Illinois Terminal R. Co., 348 U.S. 940, 75 S.Ct. 362, 99 L.Ed. 736.

26

Smalls v. Atlantic Coast Line R. Co., 348 U.S. 946, 75 S.Ct. 439, 99 L.Ed. 740.

27

O'Neill v. Baltimore & Ohio R. Co., 348 U.S. 956, 75 S.Ct. 447, 99 L.ed. 747.

28

Neese v. Southern R. Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60.

29

Anderson v. Atlantic Coast Line R. Co., 350 U.S. 807, 76 S.Ct. 60, 100 L.Ed.
725.

30

Strickland v. Seaboard Air Line R. Co., 350 U.S. 893, 76 S.Ct. 157, 100 L.Ed.
786.

31

Cahill v. New York, N.H. & H.R. Co., 350 U.S. 898, 351 U.S. 183.

32

Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.

33

Webb v. Illinois Central R. Co., 352 U.S. 512, 77 S.Ct. 451, 1 L.Ed.2d 503.

34

Arnold v. Panhandle & Santa Fe R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d
889.

35

Futrelle v. Atlantic Coast Line R. Co., 353 U.S. 920, 77 S.Ct. 682, 1 L.Ed.2d
718.

36

Shaw v. Atlantic Coast Line R. Co. et al., 353 U.S. 920, 77 S.Ct. 680, 1
L.Ed.2d 718.

37

Deen v. Gulf, Colorado & Santa Fe R. Co., 353 U.S. 925, 77 S.Ct. 715, 1
L.Ed.2d 721.

38

Thomson v. Texas & Pacific R. Co., 353 U.S. 926, 77 S.Ct. 698, 1 L.ed.2d 722.

39

McBride v. Toledo Terminal R. Co., 354 U.S. 517, 77 S.Ct. 1398, 1 L.Ed.2d
1534.

40

Ringhiser v. Chesapeake & Ohio R. Co., 354 U.S. 901, 77 S.Ct. 1093, 1

L.Ed.2d 1268.
41

Gibson v. Thompson, 355 U.S. 18, 78 S.Ct. 2, 2 L.Ed.2d 1.

42

Stinson v. Atlantic Coast Line R. Co., 355 U.S. 62, 78 S.Ct. 136, 2 L.Ed.2d 93.

43

Honeycutt v. Wabash R. Co., 355 U.S. 424, 78 S.Ct. 393, 2 L.Ed.2d 380.

44

Ferguson v. St. Louis-San Francisco R. Co., 356 U.S. 41, 78 S.Ct. 671, 2
L.Ed.2d 571.

45

Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799.

46

Moore v. Terminal R. Assn., 358 U.S. 31, 79 S.Ct. 2, 3 L.Ed.2d 25.

47

Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 765.

48

Conner v. Butler, 361 U.S. 29, 80 S.Ct. 21.

49

Harris v. Pennsylvania R. Co., 361 U.S. 15, 80 S.Ct. 22.

50

B. Where lower court which withheld the case from the jury or set aside a jury
verdict for the employee and ordered a new trial or rendered judgment for the
employer was sustained:

51

Reynolds v. Atlantic Coast Line R. Co., 336 U.S. 207, 69 S.Ct. 507, 93 L.Ed.
618.

52

Moore v. Chesapeake & Ohio R. Co., 340 U.S. 573, 71 S.Ct. 428, 95 L.Ed.
547.

53

Herdman v. Pennsylvania R. Co., 352 U.S. 518, 77 S.Ct. 455, 1 L.Ed.2d 508.

54

II. Cases in Which Certiorari Was Denied.

55

A. Where lower court withheld case from the jury or overturned a jury verdict
for employee and rendered judgment for the employer:

56

Scocozza v. Erie R. Co., 337 U.S. 907, 69 S.Ct. 1048, 93 L.Ed. 1719.

56

Scocozza v. Erie R. Co., 337 U.S. 907, 69 S.Ct. 1048, 93 L.Ed. 1719.

57

Killian v. Pennsylvania R. Co., 338 U.S. 819, 70 S.Ct. 63, 94 L.Ed. 497.

58

Lavender v. Illinois Central R. Co., 338 U.S. 822, 70 S.Ct. 67, 94 L.Ed. 499.

59

Roberts v. Alabama Great Southern R. Co., 340 U.S. 829, 71 S.Ct. 66, 95 L.Ed.
609.

60

Emmick v. Baltimore & Ohio R. Co., 340 U.S. 831, 71 S.Ct. 43, 95 L.Ed. 611.

61

Roberts v. Missouri-Kansas-Texas R. Co., 340 U.S. 832, 71 S.Ct. 54, 95 L.Ed.

611.

62

Gentry v. Seaboard Air Line R. Co., 340 U.S. 853, 71 S.Ct. 82, 95 L.Ed. 625.

63

Moleton v. Union Pacific R. Co., 340 U.S. 932, 71 S.Ct. 495, 95 L.Ed. 672.

64

Healy v. Pennsylvania R. Co., 340 U.S. 935, 71 S.Ct. 490, 95 L.Ed. 674.

65

Ottley v. St. Louis-San Francisco R. Co., 340 U.S. 948, 71 S.Ct. 533, 95 L.Ed.
683.

66

Craven v. Atlantic Coast Line R. Co., 340 U.S. 952, 71 S.Ct. 571, 95 L.Ed. 686.

67

Jaroszewski v. Central R. Co., 344 U.S. 839, 73 S.Ct. 26, 97 L.Ed. 653.

68

Creamer v. Ogden Union R. & Depot Co., 344 U.S. 912, 73 S.Ct. 333, 97 L.Ed.
703.

69

Frizzell v. Wabash R. Co., 344 U.S. 934, 73 S.Ct. 505, 97 L.Ed. 718.

70

Gill v. Pennsylvania R. Co., 346 U.S. 816, 74 S.Ct. 27, 98 L.Ed. 343.

71

Smith v. Baltimore & Ohio R. Co., 346 U.S. 838, 74 S.Ct. 61, 98 L.Ed. 360.

72

Wetherbee v. Elgin, Joliet & Eastern R. Co., 346 U.S. 867, 74 S.Ct. 104, 98
L.Ed. 378.

73

Shellhammer v. Lehigh Valley R. Co., 347 U.S. 990, 74 S.Ct. 852, 98 L.Ed.
1124.

74

Keiper v. Northwestern Pacific R. Co., 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed.
826.

75

Click v. Jacksonville Terminal Co., 350 U.S. 994, 76 S.Ct. 543, 100 L.Ed. 859.

76

Barnett v. Terminal R. Assn. of St. Louis, 351 U.S. 953, 76 S.Ct. 850, 100
L.Ed. 1476.

77

Lupo v. Norfolk & Western R. Co., 352 U.S. 891, 77 S.Ct. 128, 1 L.Ed.2d 86.

78

Collins v. Atlantic Coast Line R. Co., 352 U.S. 942, 77 S.Ct. 265, 1 L.Ed.2d
238.

79

Bennett v. Southern R. Co., 353 U.S. 958, 77 S.Ct. 865, 1 L.Ed.2d 909.

80

Kelly v. Pennsylvania R. Co., 355 U.S. 892, 78 S.Ct. 265, 2 L.Ed.2d 190.

81

Dessi v. Pennsylvania R. Co., 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1073.

82

Baum v. Baltimore & Ohio R. Co., 358 U.S. 881, 79 S.Ct.

83

B. Where lower court sustained a jury verdict for the employer:

84

Jones v. Illinois Terminal R. Co., 347 U.S. 956, 74 S.Ct. 682, 98 L.Ed. 1101.

85

Conser v. Atchison, Topeka & Santa Fe R. Co., 348 U.S. 828, 75 S.Ct. 45, 99
L.Ed. 653.

86

Metrakos v. Cleveland Union Terminals Co., 348 U.S. 872, 75 S.Ct. 107, 99
L.Ed. 686.

87

Kane v. Chicago, Burlington & Quincy R. Corp., 348 U.S. 943, 75 S.Ct. 365,
99 L.Ed. 738.

88

Daulton v. Southern Pacific Co., 352 U.S. 1005, 77 S.Ct. 564, 1 L.Ed.2d 549.

89

Burch v. Reading Co., 353 U.S. 965, 77 S.Ct. 1049, 1 L.Ed.2d 914.

90

Brinkley v. Pennsylvania R. Co., 358 U.S. 865, 79 S.Ct. 94, 3 L.Ed.2d 97.

91

Masterson v. New York Central R. Co., 361 U.S. 832, 80 S.Ct. 84.

92

C. Where lower court reversed a jury verdict for the employee and directed a
new trial:

93

Banning v. Detroit, Toledo & Ironton R. Co., 338 U.S. 815, 70 S.Ct. 54, 94
L.Ed. 493.

94

Dixon v. Atlantic Coast Line R. Co., 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. 628.

95

Thomas v. Chesapeake & Ohio R. Co., 344 U.S. 921, 73 S.Ct. 387, 97 L.Ed.
709.

96

Milom v. New York Central R. Co., 355 U.S. 953, 78 S.Ct. 537, 2 L.Ed.2d 529.

97

Anderson v. Atlantic Coast Line R. Co., 361 U.S. 841, 80 S.Ct. 83.

98

D. Where lower court sustained a jury verdict for the employee or held that the
employee's case should have gone to the jury:

99

Atlantic Coast Line R. Co. v. Haselden, 338 U.S. 825, 70 S.Ct. 73, 94 L.Ed.
501.

100 Atlantic Coast Line R. Co. v. Hill, 340 U.S. 814, 71 S.Ct. 42, 95 L.Ed. 598.
101 New York, New Haven & Hartford R. Co. v. Korte, 342 U.S. 868, 72 S.Ct. 108,
96 L.Ed. 652.
102 Atchison, Topeka & Santa Fe R. Co. v. White, 343 U.S. 915, 72 S.Ct. 648, 96
L.Ed. 1330.
103 Pennsylvania R. Co. v. Donnelly, 344 U.S. 855, 73 S.Ct. 93, 97 L.Ed. 663.
104 Denver & Rio Grande Western R. Co. v. McGowan, 344 U.S. 918, 73 S.Ct.
346, 97 L.Ed. 707.

105 Terminal Railroad Ass'n of St. Louis v. Barnett, 345 U.S. 956, 73 S.Ct. 938, 97
L.Ed. 1377.
106 Southern Pacific Co. v. Miller, 346 U.S. 909, 74 S.Ct. 239, 98 L.Ed. 406.
107 Chicago, Milwaukee, St. Paul & Pacific R. Co. v. Woodrow, 347 U.S. 935, 74
S.Ct. 630, 98 L.Ed. 1085.
108 Fort Worth & Denver R. Co. v. Prine, 348 U.S. 826, 75 S.Ct. 42, 99 L.Ed. 651.
109 Chicago, Burlington & Quincy R. Co. v. Bonnier, 348 U.S. 830, 75 S.Ct. 53, 99
L.Ed. 655.
110 Chicago & North Western R. Co. v. Margevich, 348 U.S. 861, 75 S.Ct. 84, 99
L.Ed. 678.
111 Louisiana & Arkansas R. Co. v. Johnson, 348 U.S. 875, 75 S.Ct. 111, 99 L.Ed.
688.
112 Chattanooga Station Co. v. Massey, 348 U.S. 896, 75 S.Ct. 216, 99 L.Ed. 704.
113 Chicago, Rock Island & Pacific R. Co. v. Kifer, 348 U.S. 917, 75 S.Ct. 299, 99
L.Ed. 719.
114 Elgin, Joliet & Eastern R. Co. v. crowley, 348 U.S. 927, 75 S.Ct. 340, 99 L.Ed.
727.
115 Chicago, Rock Island & Pacific R. Co. v. Wright, 349 U.S. 905, 75 S.Ct. 581,
99 L.Ed. 1241.
116 Atlantic Coast Line R. Co. v. Chancey, 349 U.S. 916, 75 S.Ct. 606, 99 L.Ed.
1250.
117 Great Northern R. Co. v. Hallada, 350 U.S. 874, 76 S.Ct. 119, 100 L.Ed. 773.
118 New York Central R. Co. v. Ruddy, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 779.
119 New York, New Haven & Hartford R. Co. v. Cereste, 351 U.S. 951, 76 S.Ct.
848, 100 L.Ed. 1475.

120 Louisiana & Arkansas R. Co. v. Moore, 351 U.S. 952, 76 S.Ct. 849, 100 L.Ed.
1475.
121 Texas & Pacific R. Co. v. Buckles, 351 U.S. 984, 76 S.Ct. 1052, 100 L.Ed.
1498.
122 Kansas City Southern R. Co. v. Justis, 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53.
123 Chicago Great Western R. Co. v. Scovel, 352 U.S. 835, 77 S.Ct. 53, 1 L.Ed.2d
54.
124 New York, Chicago & St. Louis R. Co. v. Masiglowa, 352 U.S. 1003, 77 S.Ct.
562, 1 L.Ed.2d 548.
125 Illinois Central R. Co. v. Bowman, 355 U.S. 837, 78 S.Ct. 63, 2 L.Ed.2d 49.
126 Elgin, Joliet & Eastern R. Co. v. Gibson, 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d
193.
127 Martin v. Tindell, 355 U.S. 959, 78 S.Ct. 545, 2 L.Ed.2d 534.
128 Kansas City Southern R. Co. v. Thomas, 356 U.S. 959, 78 S.Ct. 995, 2 L.Ed.2d
1066.
129 Missouri-Kansas-Texas R. Co. v. Bush, 358 U.S. 827, 79 S.Ct. 45, 3 L.ed.2d
67.
130 Wabash R. Co. v. Wehrli, 358 U.S. 932, 79 S.Ct. 321, 3 L.Ed.2d 304.
131 Butler v. Watts, 359 U.S. 926, 79 S.Ct. 609, 3 L.Ed.2d 628.
132 Pennsylvania R. Co. v. Byrne, 359 U.S. 960, 79 S.Ct. 798, 3 L.Ed.2d 766.
133 Illinois Central R. Co. v. Andre, 361 U.S. 820, 80 S.Ct. 65.
134 E. Where lower court set aside a jury verdict for the employer because of
erroneous instructions and granted a new trial:
135

Wabash R. Co. v. Byler, 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643.

135
136 Delaware, Lackawanna & Western R. Co. v. Siegrist, 360 U.S. 917, 79 S.Ct.
1435, 3 L.Ed.2d 1533.
137 Mr. Justice HARLAN, whom Mr. Justice WHITTAKER joins, dissenting.
138 The opening of a new Term that confronts the Court with the usual volume of
important and exacting business impels me to reiterate the view that cases
involving only factual issues and which are of no general importance have no
legitimate demands upon our energies, already taxed to the utmost. See Rogers
v. Missouri Pacific R. Co., 352 U.S. 500, 524, 559, 77 S.Ct. 443, 459, 478, 1
L.Ed.2d 493 (dissenting opinions). The extreme character of the adjudication
which has been made in this case also deserves something more than merely
noting my dissent on the merits, for I do not think that the reversal of this
judgment is to be justified even under the philosophy of Rogers.
139 Petitioner was injured while engaged, as a member of a 'wreck train crew,' in
retracking two derailed boxcars on the line of another railroad during the early
morning of a 'sleety, wet and sloppy' day. The operation involved the use on
each car of a derrick and four outriggers. Each outrigger was supported from
beneath by wooden blocks. The first derailed car was successfully retracked.
The equipment then had to be moved for a similar operation on the second car.
In this process petitioner wrenched his back while attempting to remove one of
the wooden blocks which had become embedded in mud. Being unable to brace
his right foot on the narrow surface of the ground between the block and one of
the railroad cross-ties, petitioner placed that foot on the tie itself. In answer to
interrogatories the jury found that respondent had been negligent in that 'the tie
of the track (petitioner) was required to walk was elevated a substantial distance
above the ground level and was covered with grease or oil, thereby affording
unstable footing.' A verdict in the sum of $25,000 was returned which on
review was set aside by the Ohio Supreme Court.
140 The Court does not reach the question as to the applicability of the Ohio rule
that this specification of negligence excluded appellate consideration of any
others asserted by petitioner. I can hardly believe that the Court quarrels with
the state court's ruling that as a matter of law the 'position of the crosstie,
slightly elevated above the roadbed' could not support the jury's finding of
negligence because such state of affairs was a common and notorious one.
Hence justification for the overturning of this judgment must rest upon what the
record shows as to the presence of grease on the crosstie and as to the
respondent's culpability for that alleged condition.
141 Unless liability in FELA cases may be predicated upon mere conjecture, this

141 Unless liability in FELA cases may be predicated upon mere conjecture, this
record for me is manifestly deficient. The only evidence that there was grease
on the crosstie was petitioner's statement on cross-examination that he found
some grease on the sole of the shoe of his right foot, and the testimony of a
section foreman of the other railroad that grease was used on that railroad's
switches, which were customarily lubricated at least twice a week. Petitioner
had not mentioned on direct examination, in his pre-trial deposition, or in a
written account of the accident made shortly after it occurred, that he had
encountered grease at any stage of the operation, and even on crossexamination did not claim that he had seen grease anywhere in the vicinity, still
less on the particular crosstie where his foot had rested. With respect to the
foreman's testimony, there is no evidence at all in the record before us as to the
position of any of the switches in relation to the crosstie in questionwhether
any of them were adjacent to it or far removed.
142 But even if this evidence be considered as justifying the jury's conclusion that
there was grease on this particular crosstie, there was, in the words of the Ohio
court, no evidence whatever that respondent 'placed it there, knew about it, or,
in the exercise of ordinary care, should have known about it.' Evidence as to
how long the alleged greasy condition of this crosstie had existed was wholly
lacking. The tie on the day in question was covered with mud. And the section
foreman of the other railroad testified that there was nothing untoward about
the condition of the area when he inspected it the next morning. How in these
circumstances it could 'with reason' be said that the respondent failed in some
duty of inspection is beyond me.
143 I cannot understand how on this record even the 'scintilla' rule of Rogers and its
progeny, see dissenting opinion in Sinkler v. Missouri Pacific R. Co., 356 U.S.
326, 332, 78 S.Ct. 758, 763, 2 L.Ed.2d 799, can be thought to justify the
overturning of this judgment. I fear that this decision confirms my growing
suspicion that the real but unarticulated meaning of Rogers is that in FELA
cases anything that a jury says goes, with the consequence that all meaningful
judicial supervision over jury verdicts in such cases has been put at an end. See
separate memorandum in Gibson v. Thompson, 355 U.S. 18, 19, 78 S.Ct. 2, 3, 2
L.Ed.2d 1. If so, I think the time has come when the Court should frankly say
so. If not, then the Court should at least give expression to the standards by
which the lower courts are to be guided in these cases. Continuance of the
present unsatisfactory state of affairs can only lead to much waste motion on
the part of lower courts and defense lawyers.
144 I would affirm.

Cases in which petitions for certiorari have been granted but which have not yet
been decided on the merits have not been included nor have cases been
included which did not present issues of negligence or causation under the Act.
Moreover, petitions seeking review of judgments of state courts granting new
trials are not included because we usually treat them as not being 'final'
judgments. See 28 U.S.C. 1257, 28 U.S.C.A. 1257; Bruce v. Tobin, 245
U.S. 18, 38 S.Ct. 7, 62 L.Ed. 123.

When the Act of February 13, 1925 (43 Stat. 936), which broadened our
certiorari jurisdiction, was before the Congress, Mr. Justice Van Devanter,
speaking for the Court, made explicit that the 'rule of four' governs the grant of
petitions for certiorari. He testified before the Subcommittee of the Senate
Judiciary Committee as follows:
'* * * if there were five votes against granting the petition and four in favor of
granting it, it would be granted, because we proceed upon the theory that when
as many as four members of the court, and even three in some instances, are
impressed with the propriety of our taking the case the petition should be
granted. This is the uniform way in which petitions for writs of certiorari are
considered.' Hearings on S. 2060, Feb. 2, 1924, 68th Cong., 1st Sess., p. 29.
And see Hearings on H.R. 8206, Dec. 18, 1924, 68th Cong., 2d Sess., p. 8.

The 'rule of four' was given as one of the reasons why the Congress thought
that the increase of our discretionary jurisdiction was warranted. The House
Report stated:
'Lest it should be thought that the increase of discretionary jurisdiction might
impair the administration of justice and lead to partial