Stanley Forman Reed

“ We now turn to the third instance of alleged negligence. This is the existence to the knowledge of the carrier of a rail, opposite the derailer, so worn on top and sides that in the opinion of qualified experts it permitted the thrust of the east wheels of the car, as they rose over the 'wrong end' of the derailer, to force the flange on the west wheels over the defective rail and so to derail the cars, when no such derailment would have occurred, 'nine times out of ten, if the best type' rail was in use. There is no evidence of the unsuitability of the rail for ordinary use. ”

“ An examination of the proven facts to determine whether they are sufficient to permit a verdict by the jury for the decedent's estate based upon reason is of no doctrinal importance. Every case varies. However, the soundness of the judgment entered in the state Supreme Court depends upon an appraisal of the evidence and, as to this, there is a difference of opinion here. Our conclusion is that there is failure to show in the record any negligence of the carrier from not putting a light on the derailer or by the action of other employees than decedent in closing the derailer. ”

“ Having thus brought forth evidence that one of respondent's employees negligently closed the derailer and that decedent was not that employee petitioner had proved a case for the jury. I cannot agree with the view apparently adopted by the Court that the petitioner was required to pin the negligence on a particular one of decedent's fellow employees. No such burden is imposed by the Federal Act. It provides merely that a railroad is liable 'for * * * death resulting in whole or in part from the negligence of any of the * * * employees.' (Italics supplied.) ”

“ That a train would ordinarily not be backed over a closed derailer except for the personal negligence of the train crew is not determinative of the issue of foreseeability. The standard of reasonable conduct may require the defendant to protect the plaintiff against 'that occasional negligence which is one of the ordinary incidents of human life and therefore to be anticipated. ”

“ As the entire train passed the derailer then without incident and again upon its exit from the storage track to return to the main line to cut the train, there is no suggestion that the derailer was not open during that part of the movement. As petitioner states, 'during switching operations it is the usual rule and custom for the derailer to be kept off the track until the switching operation is completed.' This time the switch was closed between the movement just referred to and the return of the engine and four cars to the storage track to pick up the cars waiting transportation. ”

“ It was the writer's opinion that there was 'a persistent, insidious, and plausible tendency toward uncertainty in everything that legal reasoning touches', and that this tendency was 'easier to illustrate than to describe.' Had today's decision then been available, it could well have been added to the several decisions which were used as illustrations. ”

“ When the derailer is open trains may pass in either direction without interference. A train or car approaching a closed derailer from the unexpected or wrong direction may successfully roll over the obstruction but more probably they, too, would be derailed. The apparatus is not designed when closed to safely permit the passage of cars from the unexpected direction.↑ See e.g., the Squib Case, 2 W.Bl. ”