dissenting.
From the point of view of the functions of this Court, this decision provides another example of the futility of continuing to bring here for review cases of this kind. So long as jury verdicts remain subject to some degree of judicial supervision, cf. Harris v. Pennsylvania R. Co., 361 U. S. 15, 27-28 (dissenting opinion), whether or not the evidence is sufficient to warrant removing a particular case from consideration of the jury is a question which will doubtless continue to divide equally conscientious judges in all except the clearest instances. As. to the issue upon which the judgment below is now reversed,* a majority of the Court disagrees with the unanimous view of the record taken by the two state courts. My Brother Whittaker, in dissent, takes a different view from that of the majority. And I, also in dissent, take still a different view from either approach.
*359As I read the record and the briefs, petitioner’s theory was that this accident would not have happened had he not been forced to work on top of the cars, instead of on the ground where he usually worked, in consequence of (1) the company’s instructions to perform the car-shifting operation in unusually short order, and (2) its failure to supply him with experienced helpers. Under the Rogers “rule of reason,” 352 U. S. 500, I suppose it could be said that there was an issue for the jury on both scores, in light of the not unequivocal testimony of the petitioner, quoted in my Brother Whittaker’s opinion, and the other matters referred to in the Court’s opinion. Even so,, this makes out no case- for the jury, unless there is evidence that one or both of these factors contributed, to increase the normal hazards of petitioner’s employment. I think there is no such evidence.
The record is barren of anything showing why this accident occurred. There was no evidence whatever that either the car or the ladder from which the petitioner fell was faulty. Petitioner admitted to being an experienced railroad worker whose duties had at times carried him up and down ladders, and on the tops of railroad cars. At the time of his fall the cars had stopped moving, or nearly so. When asked by the trial court to explain how he happened to fall, all petitioner coiild say was “it might have been grease or'anything on my shoe”; and this was pure conjecture, as the record shows. More especially, petitioner did not say that, he fell because he was “rushed.”
In these circumstances, to hold that the jury might have found that what-respondent did contributed to enhance the normal hazards of petitioner’s employment is, in my opinion, to say in effect that the jury should have been allowed to substitute atmosphere for evidence and speculation for reason.
*360On the basis of the criteria governing our certiorari jurisdiction, this case has not been profitable business for this Court.
I would affirm.
1 agree with the Court as to the other issue.