Gallick v. Baltimore and Ohio Railroad Company/Dissent Harlan
Mr. Justice HARLAN, dissenting.
Heartrending as the petitioner's accident has turned out to be, I think this case should not have been brought here. It involves no unsettled questions of federal law calling for decision by this Court, nor, in any acceptable sense, a departure by the state courts from legal principles already decided requiring this Court's intervention. The case thus does not qualify for review under Rule 19. [*] See the dissenting opinion of Mr. Justice Frankfurter in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 458, 1 L.Ed.2d 493, and the separate opinion of this writer, p. 559, 77 S.Ct. p. 478. The case has necessarily required an inordinate amount of time, which the Court can ill afford in the present state of its docket.
Reaching the merits, however, id., pp. 559-562, 77 S.Ct. p. 478, 479, I would affirm the judgment below. I agree with my Brothers STEWART and GOLDBERG as to the inconsistency of the jury's verdict. But in addition, I cannot say that the view of the record taken by the state courts, in holding that the evidence on the issue of causation was insufficient to make a case for the jury, was an arbitrary or unreasonable one. The opinion of the Ohio Court of Appeals evinces a conscientious effort to follow this Court's decisions under the Federal Employers' Liability Act, and more particularly the broad pronouncements made in the Rogers case, supra. On this score the Court's reversal seems to me no more than an exercise in second-guessing the state court's estimate of the record.
From another standpoint this case does have significance. It affords a particularly dramatic example of the inadequacy of ordinary negligence law to meet the social obligations of modern industrial society. The cure for that, however, lies with the legislature and not with the courts.
Mr. Justice STEWART and Mr. Justice GOLDBERG, dissenting.
We cannot agree with the Court's disposition of this case, in view of the jury's explicit finding that injury to the petitioner was not reasonably foreseeable. As the Court correctly states, 'foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence.' Interrogatory No. 20 was unambiguous: '(W)as there any reason for the defendant B & O to anticipate that such (maintenance of a stagnant, infested pool) would or might probably result in a mishap or an injury?' In our view the jury's answer to this interrogatory, finding that the railroad had no reason here to anticipate mishap or injury, was irreconcilably inconsistent with its finding of negligence in answer to Interrogatory No. 16, and a new trial should have been ordered.
The Court agrees that the answer to Interrogatory No. 20 was inconsistent with the jury's answer to Interrogatory No. 16. But instead of concluding that this inconsistency cancels out the several findings involved and thus voids the entire verdict, the Court undertakes to search for an alternative meaning to be given to Interrogatory No. 20 in order to bring it into line with the special finding which favors the petitioner. The Court seeks support for this Procrustean exercise in the often-repeated admonition that courts should make every effort 'to reconcile the jury's findings, by exegesis if necessary, * * * before we are free to disregard the jury's special verdict and remand the case for a new trial.' We think this generally sound guideline is misapplied in the present case.
The duty of courts to attempt to reconcile inconsistent jury findings has emerged from cases in which the jury answerer special interrogatories and also returned a general verdict. See, e.g., Arnold v. Panhandle & S.F.R. Co., 353 U.S. 360, 77 S.Ct. 840, 1 L.Ed.2d 889. 
The inconsistencies which the courts have dealt with in these cases were inconsistencies between a general verdict for one of the parties and seemingly conflicting special findings in answer to added interrogatories. The purpose of such an effort has been to preserve, if possible, the integrity of the jury's general verdict. As one leading commentator has explained, in the context of Federal Rule 49(b),
'The power to enter judgment on findings consistent with each other but inconsistent with the general verdict is a constitutional one and does not violate the Seventh Amendment since the jury's findings of fact are not being re-examined but, as a reasonable regulation of practice, their more specific findings of fact are allowed to control over their general conclusion embodied in the general verdict. Every reasonable intendment should, however, be indulged in favor of the general verdict in an effort to harmonize it with the answers to the interrogatories, and the latter should be held controlling only 'where the conflict on a material question is beyond reconciliation on any reasonable theory consistent with the evidence and its fair inferences.' Of course, if the answers are inconsistent with each other, and one or more with the general verdict, the court cannot enter judgment upon the basis of any of the findings, and as provided by the Rule, should not direct the entry of judgment at all, but should return the jury for further deliberation or should order a new trial.' 5 Moore, Federal Practice, 49.04.
Although the Court several times mentions a 'special verdict' of the jury, this refers to no more than the answers given to the interrogatories. The fact is that the jury returned no general verdict for either party. The jury simply answered a list of 23 specific questions, and their answers neither were, nor under any fair reading can be made, consistent. Nothing in the structure of the jury's several findings marks the answer to Interrogatory No. 20 as the one which is obviously out of line. It would be as plausible-and as incorrect-to say that the finding in response to Interrogatory No. 16 must be read to conform to the answer to Interrogatory No. 20, and to enter judgment for the respondent. 
We agree with the Court, and hence disagree with our Brother HARLAN, about the sufficiency of the evidence on the issue of causation to make a case for the jury under the standards laid down by this Court, e.g., Rogers v. Missouri Pac.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493. We also agree with the Court that no inconsistency with a finding of negligence arises from the jury's answer to Interrogatory No. 22, wherein it found that the railroad had no reason to anticipate the extent of the petitioner's injuries. In our view the answer to Interrogatory No. 22 was simply immaterial, because the interrogatory asked, in effect, whether the extent of the petitioner's injuries was foreseeable-an issue irrelevant to the merits of the case, as the Court's opinion aptly points out.
Our disagreement with the Court arises, therefore, only from its treatment of the jury's answer to Interrogatory No. 20. Since, as the Court recognizes, foreseeability of harm (as distinguished from foreseeability of the extent of injury covered by Interrogatory No. 22) is the test of liability in FELA cases, the jury's answer to Interrogatory No. 20 is plainly and irreconcilably inconsistent with its answer to Interrogatory No. 16.  Because the jury in answer to No. 16 found that the railroad was negligent, and yet at the same time specifically found in answer to No. 20 that the mishap was unforeseeable, it is, in our view, impossible to enter a judgment for either party based on these findings. By undertaking to reconcile irretrievably conflicting findings of the jury, the Court, we think, has made the same error that it correctly attributes to the Ohio Court of Appeals-it has invaded the province of the jury under this federal statute. We would avoid such an intrusion by ordering that the cause be put to another jury.
For these reasons we would set aside the judgment and remand this case for a new trial.
^1 Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798, is not to the contrary. In that case it was held that the Court of Appeals had erroneously synthesized a conflict between answers to special interrogatories, when no conflict appeared on the face of the several answers, and none was compelled by the theories underlying the several questions.
^2 Indeed, were it proper to indulge in a process of speculation to derive meaning for one answer from the content of others-as the majority does to support its conclusion that the answer to Interrogatory No. 16 is the overriding one-support for preferring the answer to Interrogatory No. 20 and entering judgment for respondent could be gained from the jury's response to Interrogatory No. 13, wherein it could not agree on whether petitioner had been furnished an unsafe place to work, thereby further contradicting the existence of negligence which was found in answer to Interrogatory No. 16.
^3 Reference to the court's oral instructions to the jury concerning Interrogatories Nos. 16 and 20 additionally negatives the Court's attempted reconciliation of the jury's answers to these questions. The description of negligence in No. 16 was merely a statement cast in terms of a 'failure to observe ordinary care,' without any suggestion that the 'failure to observe for the protection of the rights of others that degree of care, precaution, and vigilance which the circumstances justly demand' had to be a failure in relation to this plaintiff. In contrast to the negligence in the abstract which the jury can be said to have found in answer to Interrogatory No. 16, the judge instructed with reference to Interrogatory No. 20 that 'In answering this question you are instructed that it is a matter of law (that) the defendant B & O is only to be held to a reasonable degree of care, and not to the performance of practicable impossibilities, but that where the proofs justify with reason the conclusion that the employer's negligence played any part, even the slightest, introducing (sic in producing?) the injury, then the employer has a duty to anticipate that such injury would or might probably result.' This instruction dealt with the defendant railroad's duties as an employer in relation to the petitioner in a manner which the instruction concerning Interrogatory No. 16 had not. Moreover, it was, if anything, unduly favorable to petitioner in its equation of foreseeability with causation in fact, and yet the jury answered Interrogatory No. 20 in the negative.