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ran eastwardly to join the Connecticut. As another car emerged from its southern end the collision happened.

The road along which respondent was driving ran parallel with the southernly bank of the river for a short distance and then turned "abruptly," in a "sharper curve than any on the road," at a sixty degree angle down a nine per cent grade towards the bridge. Bushes and small trees cut off the view of a car "coming out of the bridge" until the respondent's car was "probably 30 feet" away.

As respondent's light car came into this curve, he cut in to the left without slackening speed or blowing a horn and suddenly found himself face to face with a larger car coming out of the bridge on its right hand side of the road at two miles per hour. The collision knocked the heavier car backward several feet and through a guard rail on the west side of the bridge approach. The road approaching the bridge "at this blind corner" was sandy, from fourteen to seventeen feet wide. Respondent testified he had known the spot "all my life" and knew cars could pass only "at a snail's pace."

4

The "Law of the Road" in Vermont is to round curves "as far to the right .. as reasonably practicable" and to "signal with bell or horn" "in going around a

Under these circumstances we are of the opinion that the Vermont law requires the submission of the question. of gross negligence to the jury. As a matter of law it seems quite plain that a jury might find a driver of a car familiar with the locality grossly negligent, when with three guests and without a signal he rounds a blind, sharp curve at fifteen miles per hour on the wrong side into a narrow bridge entrance. The accepted Ver

"Vermont Public Laws (1933) § 5110-IX.

'Id., § 5110-XV.

mont definition of gross negligence is found in Shaw v. Moore:

"Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from wilful and intentional conduct which is or ought to be known to have a tendency to injure."

7

This has been repeated many times in later cases. The application creates the difficulties. The latest cases say "each case must be judged according to its own facts." 8

7

*104 Vt. 529, 531-532; 162 A. 373.

Dessereau v. Walker, 105 Vt. 99, 101; 163 A. 632; Franzoni v. Ravenna, 105 Vt. 64; 163 A. 564; Hunter v. Preston, 105 Vt. 327, 338; 166 A. 17.

8

Ellison v. Colby, 110 Vt. 431; 8 A. 2d 637, 640; Kelley v. Anthony, 110 Vt. 490; 8 A. 2d 641, 642.

Admittedly there are instances among the Vermont cases which might be logically cited to support a refusal to submit this case. About as many are upon the other side.10 We think the District Court correctly appraised the law and facts.

We reverse the judgment of the Circuit Court of Appeals and affirm that of the District Court.

Reversed.

RAILROAD COMMISSION OF TEXAS ET AL. v. PULLMAN COMPANY ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TEXAS.

No. 283. Argued February 4, 1941.-Decided March 3, 1941.

A railroad company, some of whose trains in Texas had each but one Pullman sleeping car and that in charge of a colored porter subject to the control of the train conductor, assailed in the federal court, as unauthorized by Texas statutes and as violative of the Federal Constitution, a regulation by a state commission which would require that such cars be continuously in charge of an employee "having the rank and position of a Pullman conductor." Pullman porters, intervening, also attacked the order, adopting the railroad's objections but urging mainly that it discriminated against Negroes in violation of the Fourteenth Amendment, Pullman porters being Negroes and the conductors white. Held:

"Shaw v. Moore, 104 Vt. 529; 162 A. 373; Franzoni v. Ravenna, 105 Vt. 64; 163 A. 564; Anderson v. Olson, 106 Vt. 70; 184 A. 712; L'Ecuyer v. Farnsworth, 106 Vt. 180; 170 A. 677; Garvey v. Michaud, 108 Vt. 226; 184 A. 712; Kelley v. Anthony, 110 Vt. 490; 8 A. 2d 641.

10 Dessereau v. Walker, 105 Vt. 99; 163 A. 632; Farren v. McMahon, 110 Vt. 55; 1 A. 2d 726; Hunter v. Preston, 105 Vt. 327, 338; 166 A. 17; Hall v. Royce, 109 Vt. 99, 106; 192 A. 193; Ellison v. Colby, 110 Vt. 431; 8 A. 2d 637; Powers v. Lackey, 109 Vt. 505; 1 A. 2d 693.

1. Decision of the issue of unconstitutional discrimination should be withheld pending proceedings to be taken in the state courts to secure a definitive construction of the state statute. P. 498.

2. The federal courts, when asked for the extraordinary remedy of injunction, will exercise a sound discretion in the public interest to avoid needless friction with state policies that may result from tentative constructions of state statutes and premature adjudication on their constitutionality. P. 500.

33 F. Supp. 675, reversed.

APPEAL from a decree of the District Court of three judges which enjoined the enforcement of an order of the above-named Railroad Commission.

Mr. Cecil A. Morgan for M. B. Cunningham et al.; and Mr. Cecil C. Rotsch, Assistant Attorney General of Texas, with whom Messrs. Gerald C. Mann, Attorney General, Glenn R. Lewis, and Lee Shoptaw, Assistant Attorneys General, were on the brief, for the Railroad Commission et al., appellants.

Mr. Ireland Graves, with whom Messrs. Lowell M. Greenlaw, Herbert S. Anderson, Charles L. Black, Claude Pollard, and F. B. Walker were on the brief, for appellees.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

In those sections of Texas where the local passenger traffic is slight, trains carry but one sleeping car. These trains, unlike trains having two or more sleepers, are without a Pullman conductor; the sleeper is in charge of a porter who is subject to the train conductor's control. As is well known, porters on Pullmans are colored and conductors are white. Addressing itself to this situation, the Texas Railroad Commission after due hearing ordered that "no sleeping car shall be operated on any line of railroad in the State of Texas . . . . . unless such

301335°-41-32

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cars are continuously in the charge of an employee . . having the rank and position of Pullman conductor." Thereupon, the Pullman Company and the railroads affected brought this action in a federal district court to enjoin the Commission's order. Pullman porters were permitted to intervene as complainants, and Pullman conductors entered the litigation in support of the order. Three judges having been convened, Judicial Code, § 266, as amended, 28 U. S. C. § 380, the court enjoined enforcement of the order. From this decree, the case came here directly. Judicial Code, § 238, as amended, 28 U. S. C. § 345.

The Pullman Company and the railroads assailed the order as unauthorized by Texas law as well as violative of the Equal Protection, the Due Process and the Commerce Clauses of the Constitution. The intervening porters adopted these objections but mainly objected to the order as a discrimination against Negroes in violation of the Fourteenth Amendment.

The complaint of the Pullman porters undoubtedly tendered a substantial constitutional issue. It is more than substantial. It touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open. Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy. It is therefore our duty to turn to a consideration of questions under Texas law.

The Commission found justification for its order in a Texas statute which we quote in the margin. It is com

1 Vernon's Anno. Texas Civil Statutes, Article 6445:

"Power and authority are hereby conferred upon the Railroad Commission of Texas over all railroads, and suburban, belt and terminal railroads, and over all public wharves, docks, piers, elevators, warehouses, sheds, tracks and other property used in connection therewith in this State, and over all persons, associations