Davis v. Virginian Railway Company/Concurrence Whittaker

Mr. Justice WHITTAKER, concurring in part and dissenting in part.

I agree that there was no evidence to support petitioner's contention that respondent is liable to him upon his claim of malpractice by the treating physician, But, with all deference, I must disagree that there was any evidence of negligence by respondent that caused or directly contributed to cause petitioner's injury. I am unable to find in the record any evidence of any 'direction' by respondent to petitioner 'to complete the spotting operation within 30 minutes.' And the 'senior brakeman,' whom the Court finds to have been 'inexperienced', is shown by his own undisputed testimony to have pursued that occupation for more than a year. Even the 'junior brakeman' is shown by his undisputed testimony to have worked at that occupation for respondent for 'about a year.' Moreover, no act either of commission or omission-of those brakemen is shown to have in any way caused or contributed to cause petitioner to slip and fall from the ladder of the standing or very slowly moving boxcar, and that is what caused his injury. Nor is there any evidence, or even any claim, of defect in that ladder. Where, then, is the evidence of respondent's negligence and of causation that is thought to have presented an issue of fact for the jury? Petitioner has pressed upon us an assignment that respondent failed to provide him with a safe place to work, in that it failed to make smooth and level the right of way adjoining the track so that, if a trainman were to slip and fall from a car ladder to the ground, he would land on level ground and be less likely to suffer injury. It is easy to understand why the Court makes no mention of that claim, but, as I see it and as the judges of the two state courts unanimously saw it, the claims it does mention are equally without substance.

Citing Bailey v. Central Vermont R. Co., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444, the Court quotes: 'To withdraw such a question from the jury is to usurp its functions.' If by that quotation the Court means that the Bailey case involved 'such a question' as we have here, I must respectfully disagree. For the facts of that case see 319 U.S. at pages 351-352, 63 S.Ct. at page 1063. On this record, I am compelled to think that the trial court and the Virginia Supreme Court of Appeals were right in holding that petitioner failed to make a submissible case of negligence and causation, and I would affirm the judgment.

Mr. Justice HARLAN, dissenting.