Wilkerson v. McCarthy/Concurrence Douglas
Mr. Justice DOUGLAS, concurring.

While I join in the opinion of the Court, I think it appropriate to take this occasion to account for our stewardship in this group of cases.

The Federal Employers' Liability Act was designed to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations. Not all these costs were imposed, for the Act did not mak  the employer an insurer. The liability which it imposed was the liability for negligence. But judges had created numerous defenses-fellow-servant rule, assumption of risk, contributory negligence-so that the employer was often effectively insulated from liability even though it was responsible for maintenance of unsafe conditions of work. The purpose of the Act was to change that strict rule of liability, to lift from employees the 'prodigious burden' of personal injuries which that system had placed upon them, and to relieve men 'who by the exigencies and necessities of life are bound to labor' from the risks and hazards that could be avoided or lessened 'by the exercise of proper care on the part of the employer in providing safe and proper machinery and equipment with which the employee does his work.' 

That purpose was not given a friendly reception in the courts. In the first place, a great maze of restrictive interpretations were engrafted on the Act, constructions that deprived the beneficiaries of many of the intended benefits of the legislation. See Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas. 1915B, 475; Toledo, St. L. & W.R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 72 L.Ed. 513; and the review of the cases in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 62-67, 63 S.Ct. 444, 448-451, 87 L.Ed. 610, 143 A.L.R. 967. In the second place, doubtful questions of fact were taken from the jury and resolved by the courts in favor of the employer. This Court led the way in overturning jury verdicts rendered for employees. See Chicago, M. & St. P.R. Co. v. Coogan, 271 U.S. 472, 46 S.Ct. 564, 70 L.Ed. 1041; Missouri Pac. R. Co. v. Aeby, 275 U.S. 426, 48 S.Ct. 177, 72 L.Ed. 351; New York Central R. Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198, 74 L.Ed. 562. And so it was that a goodly portion of the relief which Congress had provided employees was withheld from them.

The first of these obstacles which the courts had created could be removed by Congress. In 1939 Congress did indeed move to release the employees from the burden of assumption of risk which the Court had reimposed on them. 53 Stat. 1404, 45 U.S.C. § 54, 45 U.S.C.A. § 54; Tiller v. Atlantic Coast Line R. Co., supra. The second evil was not so readily susceptible of Congressional correction under a system where liability is bottomed on negligence. Since the condition was one created by the Court and beyond effective control by Congress, it was appropriate and fitting that the Court correct it. In fact, a decision not to correct it was to let the administration of this law be governed not by the aim of the legislation to safeguard employees but by a hostile philosophy that permeated its interpretation.

The basis of liability under the Act is and remains negligence. Judges will not always agree as to what facts are necessary to establish negligence. We are not in agreement in all cases. But the review of the cases coming to the Court from the 1943 Term to date  and set forth in the Appendix to this opinion shows, I think, a record more faithful to the design of the Act than previously prevailed.

Of the 55 petitions for certiorari filed during this period, 20 have been granted. Of these one was granted at the instance of the employer, 19 at the instance of an employee. In 16 of these cases the lower court was reversed for setting aside a jury verdict for an employee or taking the case f om the jury. In 3 the lower court was sustained in taking the case from the jury. In the one case granted at the instance of the employer we held that it had received the jury trial on contributory negligence to which it was entitled. In these 20 cases we were unanimous in 10 of the decisions which we rendered on the merits.

Of the 35 petitions denied, 21 were by employers claiming that jury verdicts were erroneous or that new trials should not have been ordered. The remaining 14 were filed by employees. In 10 of these the lower court had withheld the case from the jury and rendered judgment for the employer, in 3 it had sustained jury verdicts for the employer and in 1 reversed a jury verdict for the employee and directed a new trial.

From this group of cases three observations can be made:

(1) The basis of liability has not been shifted from negligence to absolute liability.

(2) The criterion governing the exercise of our discretion in granting or denying certiorari is not who loses below but whether the jury function in passing on disputed questions of fact and in drawing inferences from proven facts has been respected.

(3) The historic role of the jury in performing that function, see Jones v. East Tennessee, V. & G.R. Co., 128 U.S. 443, 445, 9 S.Ct. 118, 32 L.Ed. 478; Washington & G.R. Co. v. McDade, 135 U.S. 554, 572, 10 S.Ct. 1044, 1049, 1050, 34 L.Ed. 235; Bailey v. Central Vermont Ry., supra, is being restored in this important class of cases.

Mr. Justice MURPHY and Mr. Justice RUTLEDGE join in this opinion.

APPENDIX.

A. Where lower court which took the case from the jury or set aside a jury verdict for an employee was reversed: Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 65 S.Ct. 421, 89 L.Ed. 465; Blair v. Baltimore & O.R. Co., 323 U.S. 600, 65 S.Ct. 545, 89 L.Ed. 490; Keeton v. Thompson, 326 U.S. 689, 66 S.Ct. 135, 90 L.Ed. 405; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Cogswell v. Chicago & E.I.R. Co., 328 U.S. 820, 66 S.Ct. 1122, 90 L.Ed. 1601; Jesionowski v. Boston & M.R. Co., 329 U.S. 452, 67 S.Ct. 401, 91 L.Ed. 416, 169 A.L.R. 947; Ellis v. Union P.R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Pauly v. McCarthy, 330 U.S. 802, 67 S.Ct. 962, 91 L.Ed. 1261; Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615, Safety Appliance Act, 45 U.S.C.A. § 11; Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140; Anderson v. Atchison, T. & S.F.R. Co., 333 U.S. 821, 68 S.Ct. 854; Eubanks v. Thompson, 334 U.S. 854, 68 S.Ct. 1528; Penn. v. Chicago & N.W.R. Co., 335 U.S. 849, 69 S.Ct. 79; Coray v. Southern Pac. Co., 335 U.S. 520, 69 S.Ct. 275; Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413.

B. Where lower court which set aside a jury verdict for an employee or rendered judgment for the employer on questions of law was sustained: Brady v. Southern R. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239; Hunter v. Texas Electric R. Co., 332 U.S. 827, 68 S.Ct. 203; Eckenrode v. Pennsylvania R. Co., 335 U.S. 329, 69 S.Ct. 91.

C. Where lower court which upheld the jury's verdict on the issues of negligence and contributory negligence was sustained: McCarthy v. Bruner, 323 U.S. 673, 65 S.Ct. 126, 89 L.Ed. 547.

A. Where lower court withheld case from jury and rendered judgment for the employer: Beamer v. Virginian R. Co., 321 U.S. 763, 64 S.Ct. 486, 88 L.Ed. 1060; Cowdrick v. Pennsylvania R. Co., 323 U.S. 799, 65 S.Ct. 555, 89 L.Ed. 637; Negro v. Boston & M.R. Co., 324 U.S. 862, 65 S.Ct. 867, 89 L.Ed. 1419; Fantini v. Reading Co., 325 U.S. 856, 65 S.Ct. 1185, 89 L.Ed. 1976; Scarborough v. Pennsylvania R. Co., 326 U.S. 755, 66 S.Ct. 93, 90 L.Ed. 453; Chisholm v. Reading Co., 329 U.S. 807, 67 S.Ct. 502, 91 L.Ed. 688; Waller v. Northern P. Terminal Co., 329 U.S. 742, 67 S.Ct. 45, 91 L.Ed. 640; Wolfe v. Henwood, 332 U.S. 773, 68 S.Ct. 88; Las gna v. McCarty, 332 U.S. 829, 68 S.Ct. 205; Trust Co. of Chicago v. Erie R. Co., 334 U.S. 845, 68 S.Ct. 1513.

B. Where lower court sustained a jury verdict for the employer: Barry v. Reading Co., 324 U.S. 867, 65 S.Ct. 912, 89 L.Ed. 1422; Benton v. St. Louis-San Francisco R. Co., 324 U.S. 843, 65 S.Ct. 676, 89 L.Ed. 1405; Benson v. Missouri-Kansas-Texas R. Co., 332 U.S. 830, 68 S.Ct. 206.

C. Where lower court reversed a jury verdict for the employee and directed a new trial: Owens v. Union Pac. R. Co., 323 U.S. 740, 65 S.Ct. 57, 89 L.Ed. 593.

D. Where lower court sustained jury verdict for the employee or held that the employee's case should have gone to the jury: Southern Ry. Co. v. Jester, 323 U.S. 716, 65 S.Ct. 44, 89 L.Ed. 576; Thompson v. Godsby, 323 U.S. 719, 65 S.Ct. 48, 89 L.Ed. 579; Northern Pac. R. Co. v. Bimberg, 323 U.S. 752, 65 S.Ct. 87, 89 L.Ed. 602; Terminal R. Ass'n of St. Louis v. Copeland, 323 U.S. 799, 65 S.Ct. 554, 89 L.Ed. 637; Chicago & E.I.R. Co. v. Waddell, 323 U.S. 732, 65 S.Ct. 69, 89 L.Ed. 587; Boston & M.R. Co. v. Cabana, 325 U.S. 873, 65 S.Ct. 1414, 89 L.Ed. 1991; Texas & P.R. Co. v. Riley, 325 U.S. 873, 65 S.Ct. 1414, 89 L.Ed. 1991; Terminal R. Ass'n of St. Louis v. Mooney, 326 U.S. 723, 66 S.Ct. 28, 90 L.Ed. 428; Terminal R. Ass'n of St. Louis v. Schorb, 326 U.S. 786, 66 S.Ct. 470, 90 L.Ed. 477; Baltimore & O. Chicago Terminal R. Co. v. Howard, 328 U.S. 867, 66 S.Ct. 1377, 90 L.Ed. 1637; Gardner v. Griswold, 329 U.S. 725, 67 S.Ct. 74, 91 L.Ed. 628; Henwood v. Chaney, 329 U.S. 760, 67 S.Ct. 113, 91 L.Ed. 655; Boston & M.R. v. Meech, 329 U.S. 763, 67 S.Ct. 124, 91 L.Ed. 658; Wheeling & L.E.R. Co. v. Keith, 332 U.S. 763, 68 S.Ct. 67; Delaware, Lackawanna & W.R. Co. v. Mostyn, 332 U.S. 770, 68 S.Ct. 82; Atlantic Coast Line R. Co. et al. v. Meeks, 333 U.S. 827, 68 S.Ct. 453; Wabash R. Co. v. Hampton, 333 U.S. 833, 68 S.Ct. 460; Fleming v. Husted, 333 U.S. 843, 68 S.Ct. 661; Unity R. Co. v. Kurimsky, 333 U.S. 855, 68 S.Ct. 734; Baltimore & O.R. Co. v. Skidmore, 335 U.S. 816, 69 S.Ct. 34.

E. Where lower court set aside a jury verdict for the employer because of erroneous instructions and ordered a new trial. Pennsylvania R. Co. v. McCarthy, 329 U.S. 812, 67 S.Ct. 635, 91 L.Ed. 693.

Mr. Chief Justice VINSON, dissenting. 

Notes