Affolder v. New York, Chicago, & St. Louis Railroad Company/Dissent Jackson
Mr. Justice JACKSON, dissenting.

The only issue surviving in this case is whether the charge gave the jury a sufficiently clear and correct knowledge of the law to be applied.

The Court of Appeals thought the charge as a whole 'very probably gave the jury the impression' that it need only find that two cars failed to couple on impact to establish a violation of the Safety Appliance Act. This, as the Court recognizes, is not the law. Before a failure to couple establishes a defective coupler, it must be found that it was properly set so it could couple. If it was not adjusted as such automatic couplers must be, of course the failure is not that of the device.

The instructions contained language quoted by this Court that would suggest this rule. Other language was used, however, which might well cancel the effect of that quoted. Judge Collet, for the Court of Appeals, said, 'We are unable to escape the conclusion that the instruction was not sufficiently clear and definite in that respect.' 174 F.2d at 491.

If the charge seemed so foggy to a Court of Appeals, generally familiar with what the trial judge was driving at, I do not see how this Court can be so confident that it did not mislead a jury of laymen. That confidence is all upon which we reverse the judgment. We cannot know any more about its effect than did the Court of Appeals; and that court happened to have been composed of judges, two of whom have had the experience of presiding over jury trials in District Court, which gives them a better informed mind on the subject than we have. I should be inclined to agree with them that the charge leaves the subject in so much confusion that I do not know just what the instruction did amount to. The most that can happen under the decision now being reversed is to resubmit the case to a jury that probably would be more carefully and clearly instructed.

In any event, I do not think this is the kind of issue that meets the qualifications we have ourselves laid down for grant of certiorari. Supreme Court Rule 38(5), 28 U.S.C.A. No question of law is, or could be, settled unless we could devise some measure of incoherence so that lower courts would know how much we will think is too much. Short of that, we only substitute our own impression for that of the Court of Appeals as to the probable psychological effect of the instruction in this individual case. All that was written in favor of dismissing a writ as improvidently granted in Carter v. Atlanta & St. Andrews Bay R. Co., 338 U.S. 430, 437, 70 S.Ct. 226, 230, and Wilkerson v. McCarthy, 336 U.S. 53, 65-77, 69 S.Ct. 413, 419-424, seems especially applicable here. I would dismiss this writ as improvidently granted. 

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