Sinkler v. Missouri Pacific Railroad Company/Concurrence Clark

Mr. Justice CLARK concurs in the result, believing that for purposes of the FELA, the Belt Railway was performing a nondelegable duty of respondent's at the time of petitioner's injury.

Mr. Justice WHITTAKER, believing that petitioner was not only respondent's employee but, in the circumstances of this case, was also its passenger at the time and place in question and that respondent's franchised carrier responsibilities to him as its passenger were nondelegable, concurs in the result of this opinion.

Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER joins, dissenting.

This case is a further step in a course of decisions through which the Court has been rapidly converting the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. §§ 51-60, 45 U.S.C.A. §§ 51-60 (and the Jones Act, which incorporates the FELA, 41 Stat. 1007, 46 U.S.C. § 688, 46 U.S.C.A. § 688), into what amounts to a workmen's compensation statute.

This process recently gained marked momentum with Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 559, 77 S.Ct. 443, 459, 478, 1 L.Ed.2d 493, decided at the 1956 Term, where the Court in effect established a 'scintilla' rule in these cases for judging the sufficiency of the evidence on the issue of 'causation.' In subsequent decisions that rule has been extended, sub silentio, to cover also the issue of 'negligence.' More recently in Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382, decided a few months ago, the Court still further expanded these enactments to embrace a concept of absolute liability for violation of any statutory duty occasioning injury to one entitled to sue under them. And today we are told that ' * *  * when a railroad employee's injury is caused in whole or in part by the fault of others performing, under contract, operational activities of his employer, such others are 'agents' of the employer within the meaning of § 1 of FELA.' This is held to be so even though it has long been customary in railroading for carriers to delegate to others activities such as the switching operation here, see Fort Worth Belt R. Co. v. United States, 5 Cir., 22 F.2d 795, and notwithstanding that under traditional common-law concepts those performing such specialized activities would be regarded as independent contractors. See, e.g., Brady v. Chicago & G.W.R. Co., 8 Cir., 114 F. 100, 108-112, 57 L.R.A. 712; Moleton v. Union Pacific R.R. Co., 118 Utah 107, 114-115, 219 P.2d 1080, 1084.

In light of the FELA and its legislative history it is difficult to regard any of these developments as other than the products of freewheeling. The FELA ' * *  * is founded on common-law concepts of negligence and injury, subject to such qualifications as Congress has imported into those terms.' Urie v. Thompson, 337 U.S. 163, 182, 69 S.Ct. 1018, 1030, 93 L.Ed. 1282. See also dissenting opinions in Rogers v. Missouri Pacific R. Co., supra, 352 U.S. at pages 524, 538-539, 559, 563-564, 77 S.Ct. at pages 458, 466-467, 478, 480-481, and in Kernan v. American Credging Co., supra, 355 U.S. at pages 441, 451-452, 78 S.Ct. at pages 402, 406-407. The only such qualifications which Congress has yet seen fit to enact are those effected by §§ 3 and 4 of the Act, modifying or abolishing the common-law defenses of contributory negligence and assumption of risk. 35 Stat. 66, 45 U.S.C. § 53, 45 U.S.C.A. § 53; 35 Stat. 66, as amended, 45 U.S.C. § 54, 45 U.S.C.A. § 54. More particularly, when a well-known legal term like 'agents' is used in legislation, it should be taken as carrying its ordinary meaning unless the statute indicates the contrary. Cf. Hull v. Philadelphia & R.R. Co., 252 U.S. 475, 479, 40 S.Ct. 358, 359, 64 L.Ed. 670. The principle of 'accommodating scope' to which the Court resorts for justification of the expansive meaning now given that term is, as applied here, a new rule of statutory construction of which I have not been aware until today.

I must dissent.