# Shenker v. Baltimore & Ohio Railroad Company/Dissent Goldberg

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Goldberg
United States Supreme Court
374 U.S. 1
Shenker v. Baltimore & Ohio Railroad Company
Argued: April 17, 1963. --- Decided: June 10, 1963
Mr. Justice GOLDBERG, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.
With all deference, I must respectfully dissent. We are not here dealing with a situation in which a lower court has so disregarded applicable law as to require correction here. This is simply a case in which the evidence is insufficient to sustain liability of the respondent B&O and in which a perhaps more substantial claim against the P E was abandoned by the petitioner below. Any hiatus in protection of the petitioner exists not because of inadequacies in the law, but solely because of inadequacies in the evidence.
Normally, in a case such as this in which the defendant's own negligence did not create the hazardous condition, actual or constructive notice to the defendant of the injury-producing defect is a prerequisite to negligence and, therefore, to liability. See, e.g., Sano v. Pennsylvania R. Co., 3 Cir., 282 F.2d 935, 936, 938; Dobson v. Grand Trunk Western R. Co., 7 Cir., 248 F.2d 545, 548; Atlantic Coast Line R. Co. v. Collins, 4 Cir., 235 F.2d 805, 808, cert. denied 352 U.S. 942, 77 S.Ct. 265, 1 L.Ed.2d 238; Kaminski v. Chicago River & Indiana R. Co., 7 Cir., 200 F.2d 1, 4. See also Ringhiser v. Chesapeake & O.R. Co., 354 U.S. 901, 77 S.Ct. 1093, 1 L.Ed.2d 1268; Wetherbee v. Elgin, J. & E.R Co., 7 Cir., 191 F.2d 302, subsequent appeal reported in 204 F.2d 755, cert. denied, 346 U.S. 867, 74 S.Ct. 104, 98 L.Ed. 378. Thus, given the failure of the petitioner to introduce evidence tending to show that the respondent B&O knew, or in the exercise of reasonable care should have known, of the defective door, the judgment entered below in favor of the B&O should be sustained.
The Court seeks to avoid the application of these ordinarily controlling principles by invoking several cases, decided prior to enactment of the F.E.L.A., which, it holds, require that, in order to discharge its duty 'to use reasonable care in furnishing (the petitioner) with a safe place to work,' Bailey v. Central Vermont R. Co., 319 U.S. 350, 352, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444, the B&O must inspect the P E cars before B&O employees are allowed or directed to work on them. Even accepting, arguendo, the general applicability here of the principle imposing on the B&O the duty to inspect the cars which it services for the P E, the result reached by the Court does not follow. Such a duty may exist, to be sure, but the obligation can be no more than to conduct reasonable, nonnegligent inspections, and the liability which would accrue from breach of such a duty would be responsibility for damages occurring as a result of the negligent performance or the nonperformance of that duty. In a meaningful sense, then, imposition of a duty to inspect is no more than a specific application of the concept of constructive knowledge, since it is implicit in the principle that one is chargeable with knowledge of that which in the exercise of reasonable care he should have known. Here, that would mean that in the exercise of reasonable care the B&O should have inspected the P&LE cars and is chargeable with knowledge of that which a reasonable inspection would have shown.
The Court, however, says merely that the B&O had a duty to inspect and that, having failed to inspect, it is liable to the petitioner for the defect which apparently caused his injury. I find this reasoning unconvincing.
While the Court declares that it is undisputed that the B&O did not inspect, there is simply no evidence in the record with regard to inspection. Moreover, even if an inference of failure to inspect were supportable, there is no basis for assuming, as the Court does and must do to sustain its result, that a reasonable, nonnegligent inspection procedure would, in fact, have disclosed the defect which is the basis of the petitioner's claim. Even when there does exist a duty of inspection, the mere existence of a defect does not itself create liability; it must also be shown that reasonable, nonnegligent inspection procedures would have disclosed the defect. Evidence of this liability-producing factor was not introduced by the petitioner. The record is devoid of evidence as to the length of time the defect existed prior to the petitioner's injury, and as to whether, even under an extremely careful and nonnegligent inspection procedure, the defect would have been discovered prior to the time of petitioner's injury.
Under the rationale and result of this case, a railroad would be liable for a defect which first appeared immediately prior to the injury for which recovery is sought and which even the most scrupulous kind of inspection procedure could neither have avoided nor detected. What the Court appears to have done is to create not simply a duty of inspection, but an absolute duty of discovery of all defects; in short, it has made the B&O the insurer of the condition of all premises and equipment, whether its own or others, upon which its employees may work. This is the wholly salutary principle of compensation for industrial injury incorporated by workmen's compensation statutes, but it is not the one created by the F.E.L.A., which premises liability upon negligence of the employing railroad. It is my view that, as a matter of policy, employees such as the petitioner, who are injured in the course of their employment, should be entitled to prompt and adequate compensation regardless of the employer's negligence and free from traditional common-law rules limiting recovery. But Congress has elected a different test of liability which, until changed, courts are obligated to apply.

## Notes

* ↑ The petitioner does not here argue that notice of the defect to the P E was also sufficient notice to respondent B&O.
* ↑ Although language in its opinion suggests the contrary, see pp. 7, 10, ante, I do not understand the Court today to be directly declaring an absolute duty to provide a safe place to work without regard to negligence, since the very cases cited by the Court indicate that the duty is to exercise reasonable care with respect thereto. Instead, the Court ignores the statutory concept of negligence in setting out the duty of inspection it imposes, a result which, for the reasons stated infra, is erroneous and violates the clear language of the governing statute.
* ↑ This, in fact, is the apparent rule of the very cases relied upon by the Court to subject the B&O to liability here. In Baltimore & Potomac R. Co. v. Mackey, 157 U.S. 72, 15 S.Ct. 491, 39 L.Ed. 624, cited by the majority at p. 8, ante, the Court based liability on the operative 'principle that a railroad company is under a legal duty not to expose its employe § to dangers arising from such defects in foreign cars as may be discovered by reasonable inspection before such cars are admitted into its train.' 157 U.S., at 91, 15 S.Ct., at 497 (emphasis supplied). The second case upon which the majority bases its result here, see pp. 8-9, ante, simply applies this same principle to a somewhat different set of facts, again declaring liability for injury-producing defects 'discoverable by proper inspection.' Texas & Pac. R. Co. v. Archibald, 170 U.S. 665, 672, 18 S.Ct. 777, 779, 42 L.Ed. 1188 (emphasis supplied). The nature and timing of the required inspection-but probably not, as the Court here declares, the duty of inspection itself-presumably depend, as a function of its reasonableness, on a number of factors, including the duration of the time the car is available to the defendant for inspection and the manner in which it is received. In both of the cited cases, the 'foreign' car was in the possession and on the tracks of the named defendant upon which liability was imposed.
* ↑ The statement attributed to the P E baggageman by the petitioner that the defective door had been reported to the P E does not, of course, shed any light on the length of time the defect had continued to exist. The report may well have been made only shortly before the petitioner was injured.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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