441 RUTLEDGE, J., concurring. means rather as "a matter of primary importance," like "primary" colors or planets or as the word is used in the phrase "the primary causes of a war." This view it found not only supported by accepted dictionary meaning but also in conformity with Congress' intent as established by the legislative history. In a further ground which we must take as reflecting its specialized experience, the Board stated: "To say that a securities firm ranking ninth among the leading investment bankers of the country with respect to its total participations in underwritings of bonds, and for a period ranking first, should be held to be beyond the scope of the statute is to say that Congress enacted a statute with the intention that it would apply to no one." I cannot say that the Board's conclusion, in the light of those groundings, is wanting either for warrant in law or for reasonable basis in fact. The considerations stated in the Court's opinion and in the dissenting opinion filed in the Court of Appeals, 153 F. 2d 785, 795, as well as by the Board itself, confirm this view. I think it important, not only for this case but for like ones which may arise in the future, perhaps as a result of this decision, to make clear that my concurrence in the Court's disposition of the case is based upon the ground I have set forth, and not upon independent judicial determination of the question presented on the merits. I do not think this Court or any other should undertake to reconsider, as an independent judgment, the Board's determination upon that question or similar ones likely to arise, if the Board was not without basis in fact for its judgment and does not clearly transgress a statutory mandate. More than has been shown here would be required to cause me to believe that the Board has exceeded its power in either respect. MR. JUSTICE FRANKFURTER joins in this opinion. JESIONOWSKI, ADMINISTRATRIX, v. BOSTON & MAINE RAILROAD. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT. No. 88. Argued December 16, 1946. Decided January 13, 1947. In an action against a railroad in a federal district court under the Federal Employers' Liability Act to recover damages for the death of a brakeman resulting from the derailment of certain cars, the evidence showed that he threw a switch and signaled the engineer to back the cars, which were being switched from a main line to a siding. There was evidence tending to show that he negligently threw the switch while the lead car straddled it, which might have caused the derailment. Other evidence tended to show that, when the derailment occurred, splinters and planks were thrown into the air near a frog (75 feet from the switch) which could have caused the derailment. Some testified they were found on the track close to the switch and some that they were close to the frog. There was evidence that the frog and switch had been in good condition before and after the derailment and that the cars had been operated and the tracks used previously without any similar mishap. The jury was instructed that, if it found that the accident did not result from negligence of the deceased, it could infer that it resulted from negligence of the railroad. It found for the plaintiff. Held: 1. The doctrine of res ipsa loquitur was applicable and the judgment against the railroad is sustained. Pp. 456–459. 2. In this case, the jury's right to draw inferences from evidence and the sufficiency of the evidence to support a verdict are federal questions. P. 457. 3. The facts support the jury's findings both that the deceased's conduct did not cause the accident and that the railroad's did. P. 458. 4. Under Rule 75 (d) of the Rules of Civil Procedure, a statement in the designation of record on appeal that "the doctrine of res ipsa loquitur is not applicable to the facts of this case" was not sufficient to raise the point that, because the trial judge directed a verdict for the defendant on the first count of the complaint (which charged a defect in the car, track or roadbed), he was not 452 Opinion of the Court. justified in submitting to the jury the question of such a defect under the second count charging negligence generally. Pp. 458-459. 154 F.2d 703, reversed. In an action in a federal district court under the Federal Employers' Liability Act, 35 Stat. 65, 53 Stat. 1404, 45 U. S. C. § 51 et seq., petitioner obtained a judgment for damages for the death of her husband in a railroad accident. The Circuit Court of Appeals reversed. 154 F.2d 703. This Court granted certiorari. 328 U. S. 830. Reversed, p. 459. Thomas C. O'Brien argued the cause for petitioner. With him on the brief were J. Edward Keefe, Jr. and John S. Stone. Francis P. Garland argued the cause and filed a brief for respondent. MR. JUSTICE BLACK delivered the opinion of the Court. Petitioner brought this action for damages in the Federal District Court under the Federal Employers' Liability Act, 35 Stat. 65, 53 Stat. 1404, 45 U. S. C. § 51 et seq., for causing the death of her intestate. Count I alleged that "By reason of a defect or insufficiency, due to the negligence of the defendant, in its car, track, or roadbed, the car upon which the plaintiff's decedent was riding was derailed . ," causing the decedent to be thrown from the car and killed. Count II, without specifying any particular acts of negligence, charged generally that the derailment and decedent's death were the "result of the negligence of the defendant." After the evidence was in, the Court, at the request of the respondent, directed the jury to return a verdict for the respondent on the first count. Respondent's motion for directed verdict on the second count, on the ground that the evidence failed to justify a Opinion of the Court. 329 U.S. finding of negligence and that it showed that deceased was killed as the sole result of his own negligence, was overruled. The jury rendered a verdict for petitioner and judgment was entered on it. The Circuit Court of Appeals reversed and remanded to the District Court with directions to render judgment for the respondent. 154 F.2d 703. The trial court charged the jury that the burden was upon petitioner to prove by a fair preponderance of the evidence that the deceased's death was caused by respondent's negligence. It invoked the trial rule under which negligence may be inferred from unusual happenings growing out of conditions under a defendant's control. Referring to this rule under the name of res ipsa loquitur, the court charged: "Of course if the deceased's negligence was the sole cause of the accident the plaintiff here cannot recover. And since there can be no application of the doctrine of res ipsa loquitur if other causes than the negligence of the defendant, its agents or servants, might have produced the accident, the plaintiff is bound, she has the burden, to exclude the operation of such causes by a fair preponderance of the evidence before the rule can be applied. This is so because if there are other causes than the negligence of the defendant that might have caused the accident, the defendant cannot be said to be in exclusive control-one of the prerequisites to the application of the rule here invoked." The Circuit Court of Appeals reversed because it thought that the jury should not be permitted to draw an inference of defendant's negligence from an extraordinary accident growing out of a general set of circumstances which included activities of the injured person, even though a jury, under proper instructions, could find from the evidence that the injured person's activities did not cause the injury. The Circuit Court's limitation of the jury's province by this interpretation of a doctrine of res ipsa loquitur raised a question of impor 452 Opinion of the Court. tance in the trial of cases arising under federal law. We granted certiorari to consider this question. 328 U.S. 830. The testimony, so far as relevant to point the issues, may be briefly summarized. Four railroad cars were being pushed backward and eastward by an engine in order to put them on a siding north of the main track. It was the duty of deceased, a brakeman, to throw the switch before the first car reached it in order that the four cars would take the siding. There was evidence that he threw the switch and gave a signal to the engineer to back the cars. Respondent's evidence was sufficient to authorize, but not to compel, the jury to find that the deceased negligently threw the switch while the lead car in the backward movement straddled the switch with one set of the car wheels on one side of the switch and one on the other. If true, this could mean that the wheels east of the switch would move down the main line and the others would enter the siding when the switch was thrown and the backward movement took place, thus probably causing derailment. If the jury had believed respondent's evidence that this last car was astride the switch when it was thrown, it would have been authorized, under the court's charge, to find for the respondent. But about 75 feet east of this switch, at a point where the south rail of the siding track intersected the north rail of the main track, there was a frog. There was testimony that this frog operated with a spring mechanism, and that if the spring failed to work when the wheels passed over it, the cars might be derailed. Some other evidence tended to show that, at the time. the derailment occurred, splinters and planks were thrown into the air near the frog. Other evidence tended to show that planks and splinters were found on the track. Some testimony showed that they were close to the switch, and some that they were close to the frog. There was evidence that the frog and switch had been in good condi |