Inman v. Baltimore & Ohio Railroad Company/Concurrence Whittaker

Mr. Justice WHITTAKER, concurring.

I heartily join the Court's opinion. But I derive no pleasure from implying, contrary to the views of my Brothers in the minority, that there was such complete want of evidence of negligence by respondent that 'reasonable men' could not differ about it, for, at the very least, I regard my Brothers who dissent as reasonable men.

Notwithstanding this, it seems to me that the facts of this case make it crystal clear that the Court's opinion lacks not a whit in fully comporting with the standards of care of the mythical 'reasonable man,' for, like the Ohio Court of Appeals, I simply cannot see any substantial evidence-or even a scintilla or an iota of evidence-of negligence on the part of respondent that caused, or directly contributed in any degree to cause, petitioner's unfortunate injury.

Reduced to substance, the simple facts are that petitioner, a crossing flagman, while standing in a well-lighted intersection alongside a passing train in the nighttime and swinging a lighted red lantern in each hand, was struck, knocked down and run over by a drunken driver. What, I ask, did respondent do or omit that caused or contributed to cause that casualty? How could it have prevented the casualty? Petitioner says that respondent failed to provide him with enough protection.' About the only way, as I perceive, that respondent could protect its crossing flagman against injury from such lawless conduct by third persons would be to provide them with military tanks and make sure they stay in them while within or moving about crossing-intersections in the performance of their duties-and I am not even sure that this method, though ironclad, would be certain protection to a flagman against lawless injury by third persons, for someone might shoot him, an act not very different, it seems to me, from the drunken driver's conduct which injured petitioner in this case, and for which injuries he insists, and four members of this Court agree, a jury should be permitted to require respondent to pay damages. How this can be thought to square with any known concept of 'negligence' by respondent is beyond me.

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.