dissenting.
As Mr. Justice Douglas said in Wilkerson v. McCarthy, 336 U. S. 53, 68 (1949), “The liability which [the FELA] imposed was the liability for negligence.” Believing that the Congress was looking to the courts to *902see that the railroads were held to strict accountability-under the Federal Employers’ Liability Act1 for any negligence whatever resulting in injury to an employee, the Court has taken cases that in ordinary course it would have denied as involving only particular facts rather than questions “of importance to the public,” Layne & Bowler Corp. v. Western Well Works, Inc., 261 U. S. 387, 393 (1923). As in the seamen’s Jones Act2 cases, the Court feels a duty under this Federal Act to examine each case to make certain that its mandate is honored.3 There has been no breach in this policy since its establishment soon after the amendment of the Act in 1939. In my opinion, however, the judgment today goes beyond the most generous interpretation that may be given to the Act. The petitioner suffered the grievous injury which resulted in the loss of a leg while using, as a toilet, one of the railroad’s cars standing on a switch track. While petitioner was “answering his call of nature” in the car, it moved slightly from a contact with two other cars that were being switched. This contact caused some steel plates in the car to shift, crushing petitioner’s right leg.
The Court does not find a failure on the part of the railroad to provide a safe place for the petitioner to work insofar as toilet facilities are concerned. The railroad thus is not found negligent in this respect. But the Court seizes upon a statement in the trial judge’s memorandum that “There is evidence that employees sometimes used gondola cars in lieu of toilets. The Court must assume *903that this was known to the defendant.” The trial judge found, however, that the railroad could not anticipate that this particular gondola car would be used for that purpose because it was loaded with freight — steel plates— and was standing on a track that was being used'for normal switching operations. The judge points out that petitioner himself thought that the car was empty when he climbed into it. If the car had not been loaded the petitioner would not have suffered the injury which resulted. For these reasons the trial judge found that the railroad could not anticipate that its employee would so use a loaded car or that the resultant injury would occur. In addition, the petitioner had admitted that he “certainly [did] not feel that the yard crew was careless in any manner .... This was a very easy impact and the two standing cars did not move over a foot at the most.”
In the light of such a record it appears to me that negligence could not be imputed to the railroad. Of course, if the majority is saying that the railroad must inspect every loaded car awaiting switching, lest an employee be using it as á toilet, then I could easily understand the action here. But this it does not say, for it would be not only an unrealistic but an untenable burden to place on the railroad. The Court cites two cases, neithér of which appears to me to be apposite. In Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 502 (1957), “petitioner was supplied with a crude hand torch and was instructed to burn off the weeds and vegetation along [the railroad’s track].” The mishap occurred while he was performing these services. There was a “likelihood that petitioner . . . would suffer just such an injury as he did.” Id., at 504. In Wilkerson v. McCarthy, supra, the railroad had constructed a pit in its yards for the repair of car wheels. It was 40 feet long, 11 feet deep, and over 4 feet wide and was under a series of 3 or more railroad tracks. A permanent board about 22 inches wide was constructed *904across the pit and was used by the employees of the railroad to walk across it. While there was a chain placed around a portion of the pit it was not sufficient to stop employees from using the board for crossing purposes. An employee slipped on the board which was greasy and oily and was injured by a fall to the bottom of the pit. There was thus a very hazardous practice which, a jury might find, the railroad took inadequate precautions to prohibit. The railroad was held responsible. The practice here may be unsanitary, but it is not foreseeably hazardous. This accident resulted from a combination of freak circumstances rather than from actionable negligence.
While I was not on the Court when Wilkerson was decided, I fully agree with its holding and likewise adhere to my joining the Court in the Rogers case. The factual situations in those cases are far removed from the facts here. In my opinion the decision today extends the doctrine of these cases far beyond any theory of liability for negligence that the Congress intended under the Federal Employers’ Liability Act.
35 Stat. 65, as amended, 45 U. S. C. § 51 et seq.
41 Stat. 1007, 46 U. S. C. § 688 et seq.
Since the October Term 1949 there have been some 17 cases, including 8 this Term, involving the sufficiency of the evidence under the Federal Employers’ Liability Act. In 15 of these cases we of the majority, recognizing the responsibility that the Congress has placed on us to enforce the purpose of the Act, entered judgment for the injured employee.