Dennis v. Denver & Rio Grande Western Railroad Company/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice HARLAN concurs, dissenting.

The cases cited by the Court to reverse the Utah Supreme Court are familiar ones that involve the duty of an employer to provide the employee with a safe place to work. Lavender v. Kurn, 327 U.S. 645, 651-653, 66 S.Ct. 740, 743-744, 90 L.Ed. 916; Boston & M.R. Co. v. Meech, 1 Cir., 156 F.2d 109, 111-112. That issue was covered by the instructions to the jury in the present case. But as I read the record there is no evidence of negligence on the issue of 'a reasonably safe place in which to work.' In this case each workman furnished his own clothes. If it were the custom of the railroad to furnish gloves or other clothes to the employees or if, under a collective bargaining agreement, it had become its duty to do so and petitioner had been issued faulty garments, we would have a different case. We would also have a different case if failure to furnish an employee with certain kinds of equipment were tantamount to a failure to provide him a safe place to work. See, e.g., Williams v. Atlantic Coast Line R. Co., 5 Cir., 190 F.2d 744; Young v. Clinchfield R. Co., 4 Cir., 288 F.2d 499; Ferrara v. Boston & M.R. Co., 338 M ss. 323, 155 N.E.2d 416. But no such issue is tendered here.

The weather was bitter, and the emergency job of repairing a section of a damaged rail could only be done outdoors. But there was a heated truck cab for protection against the weather and outdoors there was a fire. There is nothing to suggest that petitioner was barred from using either, that pressures were put on him to remain outdoors and away from the fire or the heated cab, or that disciplinary measures would be used against those who took frequent recesses to keep warm. Rather, it was admitted that the men generally took turns using the fire and that each was the best judge of when he should warm himself.

Knowledge of the foreman that petitioner was dressed less warmly than the other crew members would be relevant if it were coupled with the foreman's insistence that he perform labor for which his attire was not suitable. That, too, is a different case. The strongest possible case for petitioner, as the Court says, is that he was 'permitted' to continue working after his fingers, with the knowledge of the foreman, became very cold. But unless employers are to become insurers of these industrial accidents, that is no evidence of negligence in a society where everyone is presumed to have enough sense 'to some in out of the rain.'