dissents. In his view the failure of the automatic coupler to fasten on the first impact was not a proximate cause of the injury to petitioner. The failure did not contribute to the injury. That was caused by a too rapid coupling on the second effort.
Any deficiency in the instructions on negligence was cured by the court’s modification of the instruction set out in note 5 of the opinion.
Mr. Justice Douglas took no part in the consideration or decision of this case. Mr. Justice Frankfurter.Properly deeming industrial injuries inherently incidental to the conduct of modern industry, the law throughout the United States deals with them as such on the principle of insurance, not on the principle of negligence. The workmen’s compensation laws thereby eliminated all the inevitably casuistic efforts to apply the concepts of “negligence,” “proximate cause” and “contributory negligence” which served well enough employer-employee relations which have long since ceased. To apply the concepts of “negligence” and “proximate cause” *438to the infinite complexities of modern industry is like catching butterflies without a net. But as to injuries suffered by railroad employees, courts and juries must continue to apply these concepts so long as the anachronistic Federal Employers’ Liability Act remains.
Happily, however, Congress has not said that all the casuistries about “proximate cause” must be adjudicated by three courts. As an indispensable requirement of the functioning of this Court, Congress has left it to our discretion to decide whether, after a District Court and a Court of Appeals or two courts of a State have wrestled with the phantoms of proximate cause, this Court should have another go at it. A law by which injuries sustained by railroad employees in the course of their employment are compensated on the basis of negligence is bound to work injustice, and hardships in particular situations naturally present humane opportunities for alleviation. But no amount of stretching of negligence concepts can change the Act’s character and the mischief that it does as a cruel survival of a by-gone era. And it is inconsistent with the functions of this Court to yield to such temptations by taking cases in which a conscientious appellate court felt compelled to decide against a railroad employee on its justifiable application of the dubious requirements of negligence, even though a contrary view might also be taken. Where a case involves no general principle requiring pronouncement but merely its own unique circumstances, such alleviation is inconsistent with the criteria, set forth in Rule 38, governing this Court’s discretion in granting a writ of certiorari.
The argument at the bar of this Court and the opinions dealing with the merits leave no room for doubt that no general principle is here involved. There is merely a difference in the application of professedly settled rules *439to the circumstances of this particular case. Three experienced judges of the Court of Appeals have found no error in the judgment that was rendered for the defendant. The division in this Court underlines the fact that the three judges below could not unreasonably have entertained the view they did. I am not remotely suggesting that this Court has not reached the right result, if it had to deal with the merits. For me it is decisive that, since the merits involve merely evaluation of the unique facts in the record, the case does not fall within the proper business of the Court.
I would therefore dismiss the writ as improvidently granted. By not doing so, the Court encourages petitions of this character instead of discouraging them. The Court should save its energy for cases it necessarily must adjudicate in order to adjudicate them with due regard for the needs of the deliberative process. The only effective way to respect these considerations is to cease acquiescence in their disregard. See Wilkerson v. McCarthy, 336 U. S. 53, 64 (concurring opinion).