Inman v. Baltimore & Ohio Railroad Company/Dissent Douglas

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

Petitioner, a nighttime crossing watchman stationed at respondent's railroad intersection, was seriously injured about midnight when an automobile driven by an intoxicated person ran into him from behind while he was flagging traffic for a passing train. The jury found on a special interrogatory that respondent was negligent in not providing 'enough protection.'

The crossing is at Tallmadge and Home Avenues. Tallmadge runs east and west; Home, northeast and southwest. Three of respondent's tracks, running northwest and southeast, extend through the intersection of these two streets, and its trains move over the parallel tracks in opposite directions and often near the same time.

There was evidence that at the approach of a train petitioner had duties of the following character: (1) He was supposed to flag highway traffic moving in four directions to a stop, using lanterns and a whistle provided for that purpose. (2) If a second train was to pass at or about the time of another, he had to look for it before clearing the highway traffic. (3) He was to look for hotboxes on all passing trains and signal the conductor if he discovered any. (4) If a train was going east, he was to stand on the west side of the tracks the better to see trains coming from the west.

On the night in question petitioner received a signal that an eastbound train was approaching. Accordingly, he stationed himself a few feet west of the tracks, blowing the whistle and swinging the red lantern first toward Tallmadge Avenue traffic and then toward Home Avenue traffic. Then he stationed himself facing the tracks, his back to Tallmadge Avenue traffic.

Although respondent's tracks intersect Tallmadge and Home Avenues where those two streets cross, it is possible for a car going north on Home to make a left turn into Tallmadge even while a train is passing. There is, however, a stop sign on Home; and petitioner rightfully had halted all highway traffic. Nevertheless an intoxicated driver came through the stop sign on Home and made a squealing left turn into Tallmadge, hitting petitioner and injuring him.

There was evidence that at the time of the accident (1) the caboose of the passing train was just making the crossing; (2) the railroad block signal could not be seen from where petitioner stood; (3) another train from the opposite direction on the adjoining track was due to reach the crossing at any moment and petitioner was looking for its headlight; (4) petitioner remained standing with his back to the highway traffic as he was obliged to do if he performed these manifold duties; (5) this traffic was heavy in both streets; (6) on prior occasions cars had 'jumped the gun' at this same intersection.

It may be that if the duty of the petitioner had been restricted to stopping traffic on the approach of a train and waving it on when the train had passed, there would be on this record (unlike that in Cahill v. New York, N.H. & H.R. Co., 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed. 1075) no evidence of negligence on respondent's part. Petitioner's duties were much broader, as I have indicated. Yet the Court holds there was no jury question as to whether the place chosen for the performance of those several duties was a reasonably safe one in light of all the circumstances, including the volume of traffic at that intersection. Plainly respondent is not an insurer. It is under no duty to remove all possibilities of injury to its employees or to make, at any cost, the place of work as safe as one's living room. But whether a particular hazard is of sufficient weight and moment to induce a reasonable person to guard against it and whether that danger could be removed or diminished by safety measures reasonably available are matters for the jury to determine. The jury might find that the assignment of part of petitioner's duties to someone else or the installation of mechanical devices to stop traffic would have been undertaken by a reasonable person under the circumstances. It is not clear beyond argument of reasonable men that the respondent could not have foreseen an injury to petitioner by a reckless motorist or that it took every precaution that reasonableness under the circumstances required.

The nature of this congested crossing with three sets of railroad tracks cutting diagonally across its four corners and the multiple duties required of petitioner at this hour of the night, were sufficient in my view for a jury to find that petitioner was too busy to protect himself from the vehicular traffic and that the employer did not use reasonable care in furnishing him with a safe place to work, as required by the Act. Bailey v. Central Vermont R. Co., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. The very close division in this Court on that issue reinforces my conclusion.

There is no reason why a negligent actor should be insulated from the consequences of his negligence merely because a third party's reckless or criminal act was the immediate cause of the injury. On the contrary, we have unanimously held that the fact that the danger to the employee under the Act lies in intentional or criminal conduct of third parties is not determinative. If foreseeable, there is a duty to make reasonable provisions against such events. Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73. The instructions on this point seem to me to be adequate. The Court appears to place great stress on the lack of evidence of prior accidents at this intersection and the fact that petitioner worked there for seven years before being hit by an automobile. But certainly the duty to make a reasonable effort to provide a safe place of work is not conditioned upon an employee's first being injured or killed. Moreover, the liability of the railroad under the Act attaches even though the injury was caused only 'in part' by its negligence. Such is the command of § 1 of the Act, as repeatedly applied. See Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506-507, 77 S.Ct. 443, 448-449, 1 L.Ed.2d 493; Cahill v. New York, N.H. & H.R. Co., supra.

Though I think affirmance of the judgment is error, I am happy that we have a full Court turning its attention to an important question of law-whether trial by jury, guaranteed by the Seventh Amendment and an integral part of the remedy provided by Congress under this Act, has been honored by the courts. Moreover, as my Brother FRANKFURTER points out, affirmance of the judgment below by an equally divided Court would deprive the decision of all precedential value, so important in this as in other fields. Furthermore, the withdrawal of a Justice from a decision on the merits after certiorari has been granted impairs the integrity of the practice of allowing the vote of four Justices to bring up any case on certiorari. Participation by the whole Court at least in some of these cases (cf. Reynolds v. Atlantic Coast Line R. Co., 336 U.S. 207, 209, 69 S.Ct. 507, 508, 93 L.Ed. 618) is partial performance of our pledge to Congress.