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decided: February 25, 1957.



Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton, Harlan, Brennan

Author: Douglas

[ 352 U.S. Page 521]

 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

[ 352 U.S. Page 522]

     filling these orders, the ice cream was so hard that it could not be removed with the hemispherical scoop with which he had been furnished. Petitioner undertook to remove the ice cream with a sharp butcher knife kept nearby, grasping the handle and chipping at the hard ice cream. The knife struck a spot in the ice cream which was so hard that his hand slipped down onto the blade of the knife, resulting in the loss of two fingers of his right hand.

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

[ 352 U.S. Page 523]

     to transfer it from the deep freeze to a tempering chest in sufficient time to allow all of it to become disposable by means of the scoop when the time came for it to be served. There was no showing that any device was close at hand which would have safely performed the task. Finally, there was evidence that petitioner had been instructed to give the waiters prompt service.

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, fairminded 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:

"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."

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

[ 352 U.S. Page 524]

     should not assume that in determining these questions of negligence juries will fall short of a fair performance of their constitutional function." Wilkerson v. McCarthy, 336 U.S. 53, 62.


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.


228 F.2d 891, reversed.

MR. JUSTICE FRANKFURTER, dissenting.*fn*

" The Federal Employers Liability Act gives to railroad employees a somewhat liberalized right of recovery for injuries on the job. A great number of cases under the Act have been brought to the Supreme Court, many of them cases in which the court of appeals had set aside, on the evidence, verdicts for the employees. Despite the human appeal of these cases, Brandeis never allowed himself to regard them as the proper business of the appellate jurisdiction of the Supreme Court."

Paul A. Freund, The Liberalism of Justice Brandeis, address at a meeting of the American Historical Association in St. Louis, December 28, 1956.

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

[ 352 U.S. Page 525]

     formulated by the Court in carrying out the mandate of Congress regarding this Court's appellate jurisdiction in cases arising under the Federal Employers' Liability Act. For he began his work on the Court*fn1 just after Congress had passed the Act of September 6, 1916, 39 Stat. 726, relieving the Court of its obligatory jurisdiction over Federal Employers' Liability Act decisions by the highest state courts and the Circuit Courts of Appeals. Mr. Justice Brandeis' general outlook on the formulation by the Supreme Court of the public law appropriate for an evolving society has more and more prevailed; his concept of the role of the Supreme Court in our judicial system, and his consequent regard for the bearing on the judicial product of what business comes to the Court and how the Court deals with it, have often been neglected in the name of "doing justice" in individual cases. To him these were not technicalities, in the derogatory sense, for the conduct of judicial business. He deemed wise decisions on substantive law within the indispensable area of the Court's jurisdiction dependent on a limited volume of business and on a truly deliberative process.

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.*fn2

[ 352 U.S. Page 526]

     For many years, I reluctantly voted on the merits of these negligence cases that had been granted review. In the last ten years, and more particularly within the past few years, as the Court has been granting more and more of these petitions, I have found it increasingly difficult to acquiesce in a practice that I regard as wholly incompatible with the certiorari policy embodied in the 1916 Act, the Judiciary Act of 1925, 43 Stat. 936, and the Rules formulated by the Court to govern certiorari jurisdiction for its own regulation and for the guidance of the bar. I have therefore felt compelled to vote to dismiss petitions for certiorari in such cases as improvidently granted without passing on the merits.*fn3 In these cases I indicated briefly the reasons why I believed that this Court should not be reviewing decisions in which the sole issue is the sufficiency of the evidence for submission to the jury. In view of the increasing number of these cases that have been brought here for review -- this dissent is to four decisions of the Court -- and in view of the encouragement thereby given to continuing resort to this Court, I deem it necessary to enlarge upon the considerations that have guided me in the conviction that writs in this class of cases are "improvidently granted."*fn4

[ 352 U.S. Page 527]

     At the outset, however, I should deal briefly with a preliminary problem. It is sometimes said that the "integrity of the certiorari process" as expressed in the "rule of four" (that is, this Court's practice of granting certiorari on the vote of four Justices) requires all the Justices to vote on the merits of a case when four Justices have voted to grant certiorari and no new factor emerges after argument and deliberation. There are two reasons why there can be no such requirement. Last Term, for example, the Court disposed of 1,361 petitions for certiorari. With such a volume of certiorari business, not to mention the remainder of the Court's business, the initial decision to grant a petition for certiorari must necessarily be based on a limited appreciation of the issues in a case, resting as it so largely does on the partisan claims in briefs of counsel. See Furness, Withy & Co. v. Yang-Tsze Ins. Assn., 242 U.S. 430, 434; Southern Power Co. v. North Carolina Public Service Co., 263 U.S. 508, 509. The Court does not, indeed it cannot and should not try to, give to the initial question of granting or denying a petition the kind of attention that is demanded by a decision on the merits. The assumption that we know no more after hearing and deliberating on a case than after reading the petition for certiorari and the response is inadmissible in theory and not true in fact. Even an FELA case sometimes appears in quite a different light after argument than it appeared on the original papers. Surely this must be acknowledged regarding one of today's cases, No. 46, and see McCarthy v. Bruner, certiorari granted, 322 U.S. 718, certiorari dismissed, 323 U.S. 673. The course of argument and the briefs on the merits may disclose that a case appearing on the

[ 352 U.S. Page 528]

     surface to warrant a writ of certiorari does not warrant it, see Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387,*fn5 or may reveal more clearly that the only thing in controversy is an appraisal of facts on which this Court is being asked to make a second guess, to substitute its assessment of the testimony for that of the court below.

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.

[ 352 U.S. Page 529]

     In the usual instance, a doubting Justice respects the judgment of his brethren that the case does concern issues important enough for the Court's consideration and adjudication. But a different situation is presented when a class of cases is systematically taken for review. Then a justice who believes that such cases raise insignificant and unimportant questions -- insignificant and unimportant from the point of view of the Court's duties -- and that an increasing amount of the Court's time is unduly drained by adjudication of these cases cannot forego his duty to voice his dissent to the Court's action.

The "rule of four" is not a command of Congress. It is a 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

[ 352 U.S. Page 530]

     under the Federal Employers' Liability Act, whether coming from the state or federal courts, were reviewable in the Supreme Court by writ of error, that is, as a matter of right. After the constitutionality of the Act had been sustained, cases began to flow to the Supreme Court and within a few years the Court was threatened with an avalanche of litigation under the Act. In the 1915 Term, the Court delivered opinions in 19 cases involving an assessment of the evidence to determine whether submission to the jury was warranted. See Appendices A and B, and starred footnote to Appendix A, post, pp. 548, 549.

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

[ 352 U.S. Page 531]

     also to applications for certiorari to review judgments and decrees of the highest courts of States." Magnum Co. v. Coty, 262 U.S. 159, 163-164. (See also Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, 257-258: certiorari jurisdiction "is a jurisdiction to be exercised sparingly, and only in cases of peculiar gravity and general importance, or in order to secure uniformity of decision.") The statement for the Court by Mr. Chief Justice Taft in the Coty case indicates the strict criteria governing certiorari policy observed by the Court, except occasionally in FELA cases, previous to the Act of 1925, by which Congress put the Court's docket for all practical purposes in its own keeping. (For a more detailed history of the origin of certiorari jurisdiction, see Frankfurter and Landis, Business of The Supreme Court, cc. II, III, V, and VII.)

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:

"1. A review on writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered:

"(a) Where a state court has decided a federal question of substance not theretofore determined by

[ 352 U.S. Page 532]

     this court, or has decided it in a way probably not in accord with applicable decisions of this court.

"(b) Where a court of appeals has rendered a decision in conflict with the decision of another court of appeals on the same matter; or has decided an important state or territorial question in a way in conflict with applicable state or territorial law; or has decided an important question of federal law which has not been, but should be, settled by this court; or has decided a federal question in a way in conflict with applicable decisions of this court; or has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of this court's power of supervision.

"2. The same general considerations outlined above will control in respect of petitions for writs of certiorari to review judgments of the Court of Claims, of the Court of Customs and Patent Appeals, or of any other court whose determinations are by law reviewable on writ of certiorari."

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

[ 352 U.S. Page 533]

     for doing his work. Petitioner was engaged in burning weeds on respondent's right of way with a hand torch. He heard a whistle indicating an approaching train. He ran thirty to thirty-five yards along the track from the fire and, thinking himself far enough from the fire danger, stood near a drainage culvert watching the passing train for "hotboxes." The train caused the fire to come "right up in [his] face." Petitioner backed away with his arm over his face and fell down the incline of the culvert. There was considerable testimony concerning the circumstances of the accident, the methods of burning weeds, the duties of railroad workers, the condition of the right of way, in particular the condition of the culvert, and petitioner's knowledge of those conditions. Respondent's motions for a directed verdict at the close of petitioner's case and at the close of all the evidence were denied. The case was submitted to the jury, which returned a verdict for petitioner.

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:

"Plaintiff had been employed by defendant in various capacities since about 1925 and was, on July 2, 1952, when the accident occurred, working as a brakeman, being assigned to the crew of a local

[ 352 U.S. Page 534]

     freight run between the cities of East St. Louis and Clinton, Illinois. During the course of his duties, in a switching operation at Mount Olive, he noticed that a wheat car in the train was leaking. While the other crew members continued with the task of picking up cars to be incorporated into the train, he started back to the caboose to get some waste to plug the hole in the leaking car. He turned and, on the first step he took, tripped and fell with his left leg buckled under him. He thereby sustained a serious injury to his left kneecap. The accident occurred on the roadbed of defendant's 'house track' at a point about one foot from the end of the ties. After plaintiff fell, he looked to see what had caused him to fall and saw a clinker 'about the size of my fist' which was partly out of the ground, and a hole beside the clinker. . . . Plaintiff stated that he looked 'at the ground' before he stepped but did not see the clinker. He stated further that the footing on the roadbed looked level but was a little soft."

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

[ 352 U.S. Page 535]

     railroad. He gave the only testimony with respect to the accident and testified that, while the train was proceeding slowly, it made a sudden stop which threw him to the floor of the caboose where he was riding. The official report of the accident, which he signed, stated that the stop was made to avoid striking an automobile at a grade crossing. Petitioner gave some further testimony about the operation of air brakes, the frequency of emergency braking in his experience, and other methods of slowing down the train than by emergency braking. On this record, the Court of Appeals found a complete absence of probative facts to warrant submission of the case to the jury, and it affirmed the judgment of the District Court. 228 F.2d 902.

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:

"Plaintiff was a baker engaged at the time of the accident in serving ice cream in the galley on C deck of defendant's SS Brazil. Using the standard ice cream scoop provided for the purpose, plaintiff disposed of the contents of a half used tub and had worked his way about half way down a full additional tub. There he found the ice cream 'as hard as a brickbat,' and the scoop became useless. So it occurred to plaintiff that about a foot and a half from where he was serving and 'kept underneath the griddle' was a butcher knife, about eighteen inches long and as sharp as a razor, which might be used to chip the ice cream into small pieces. He was chipping

[ 352 U.S. Page 536]

     away when his hand slipped and he was badly cut, resulting later in the loss of two fingers of his right hand.

". . . The negligence [of defendant] is supposed to stem from a failure to provide a safe place to work and safe tools and appliances. Reliance is also placed upon the fact that plaintiff had been directed to fill the orders brought into the galley by the waiters and it is said that there must have been something wrong with the refrigeration system or the ice cream would not have been so hard.

"But no one in authority told plaintiff to use the butcher knife, which was customarily used in cutting French bread. The knife was properly in the galley and there was nothing defective about it. But it was never designed for or intended to be used as a dagger or ice pick for chipping frozen ice cream. And that it would be put to such use was not within the realm of reasonable foreseeability . . . .

"There being no proof of fault on the part of the shipowner, defendant's motion for a directed verdict should have been granted." 228 F.2d 891.

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 "common 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

[ 352 U.S. Page 537]

     show that unscheduled and sudden stops of trains are unusual or extraordinary occurrences." In No. 46, the Court therefore affirms the judgment of the Court of Appeals, which had affirmed the direction of a verdict for defendant.

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 Justices 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.*fn6 As far as the substantive

[ 352 U.S. Page 538]

     cause of action is concerned, this is the historic cause of action for negligence as it has developed from the common law. It involves the same general concept on which is based every "negligence case" in the state courts and in the multitudinous cases in the federal courts on diversity of citizenship in which the question is merely one of common-law negligence; that is, it is the familiar type of litigation that is part of the day-to-day business of state and federal trial judges.

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 ...

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