whom Mr. Justice Whittaker joins, dissenting.
The opening of a new Term that confronts the Court with the usual volume of important and exacting business impels me to reiterate the view that cases involving only factual issues and which are of no general importance have no legitimate demands upon our energies, already taxed to the utmost. See Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 524, 559 (dissenting opinions). The extreme character of the adjudication which has been made in this case also deserves something more than merely noting my dissent on the merits, for I do not think that the reversal of this judgment is to be justified even under the philosophy of Rogers.
Petitioner was injured while engaged, as a member of a “wreck train crew,” in retracking two derailed boxcars on the line of another railroad during the early morning of a “sleety, wet and sloppy” day. The operation involved the use on each car of a derrick and four outriggers. Each outrigger was supported from beneath by wooden blocks. The first derailed car was successfully retracked. The equipment then had to be moved for a similar operation *26oil the second car. In this process petitioner wrenched his back while attempting to remove one of the wooden blocks which had become embedded in mud. Being unable to brace his right foot on the narrow surface of the ground between the block and one of the railroad cross-ties, petitioner placed that foot on the tie itself. In answer to interrogatories .the jury found that respondent had been negligent in that “the tie of the track [petitioner] was required to walk was elevated a substantial distance above the ground level and was covered with grease or oil, thereby affording unstable footing.” A verdict in the sum of $25,000' was returned, which on review was set aside by the Ohio Supreme Court.
The Court does not reach the question as to the applicability of the Ohio rule that this specification of negligence excluded appellate consideration of any others asserted by petitioner. I can hardly believe that the Court quarrels with the state court’s ruling that as a .matter of law the “position of the crosstie, slightly elevated above the roadbed” could not support the jury’s finding of negligence because such state of affairs whs a common and notorious one. Hence justification for' the overturning of this judgment must rest upon what the record shows as to the presence of grease on the crosstie and as to the respondent’s culpability for that alleged condition.
Unless liability in FELA cases may be predicated upon mere conjecture, this record for me is manifestly deficient. The only evidence that there was grease on the crosstie was petitioner’s statement on cross-examination that he found some grease on the sole of the shoe of his right foot, and the testimony of a section foreman of the-other railroad that grease was used on that railroad’s switches, which were customarily lubricated at least twice a week. Petitioner had not mentioned on direct examination, in *27his pre-trial deposition, or in a written account of the accident made shortly after it occurred; that he had encountered grease at any stage of the operation, and even on cross-examination did not claim that he had'seen' grease anywhere in the vicinity, still less on the particular cross-tie where his foot had rested. With respect to the foreman’s testimony, there’is no evidence at all in the record before us as to the position of any of the switches in rela- • tion to the crosstie in question — whether any of them were adjacent to it or far removed.
But even if this evidence be considered as justifying the jury’s conclusion that there was grease' on this particular crosstie, there was, in the words of the Ohio court, no evidence whatever that respondent “placed it there, knew about, it, or, in the exercise of ordinary care, should have known about it.” Evidence as to how long the alleged greasy condition of this crosstie had existed was wholly lacking. The tie on the day in question was cov- • ered with mud. And the section foreman of the other railroad testified that there was nothing untoward about .the condition of the area when he inspected it the next morning. How in these circumstances it could “with' reason” be said that the respondent failed in some duty-of inspection is beyond me.
I cannot understand how on this record even the “scintilla” rule of Rogers and its progeny, see dissenting opinion in Sinkler v. Missouri Pacific R. Co., 356 U. S. 326, 332, can be thought to justify the overturning of this judgment. I fear that this' decision confirms my growing suspicion that the real but unarticulated meaning of Rogers is that in FELA cases anything that a jury says goes, with the consequence' that all meaningful judicial supervision over jury verdicts in such cases has been put at an end. See separate memorandum in Gibson v. Thompson, 355 U. S. 18, 19. If so, I think the time has *28come when the Court should frankly say so. If not, then the Court should at least give expression to the standards by which the lower courts are to be guided in these cases. Continuance of the present unsatisfactory state of affairs can only lead to much waste motion on the part of lower courts and defense lawyers.
I would affirm.