opinion: INMAN v. BALTIMORE & OHIO RAILROAD CO.
  No. 36.
  Argued November 12, 1959.
  Decided December 14, 1959.
  Raymond J. McGowan argued the cause and filed a brief for petitioner.
  William A. Kelly argued the caúse'for respondent. On' the brief were C. G. Roetzel and John L. Rogers, Jr.
  Mr. Justice Clark
  delivered the opinion of the Court.
  Petitioner brought this action under the. Federal Employers’ Liability Act, 35 Stat. 65, 45 U. S. C. § 51, for personal injuries sustained in the course of his employment. Petitioner. for some seven years had been a railroad crossing watchman for respondent at “Bettes Corners” in Akron, Ohio. He filed suit claiming damages for an injury he received when an intoxicated automobile driver ran into him one midnight while he was on duty flagging traffic for a passing train. Bettes Corners is a heavily traveled vehicular' intersection where Tallmadge Avenue, running east and west, is intersected by Home Avenue, which runs northeast and southwest. Three sets of railroad tracks cut diagonally across the intersection-in a northw.est-southeast direction. The driver of the automobile, heading northeast on Home Avenue, was turning left into Tallmadge Avenue when the accident occurred. Petitioner claims that the railroad “was negligent in failing to use ordinary care to provide ... a reasonable safe place to work” at the crossing. He says that his duties— including the flagging of traffic, maintenance of a lookout for other trains, and the reporting of hotboxes on the passing ones — required him to face the train tracks and created a likelihood of his being struck by automobiles at the intersection.
  The evidence of the manifold duties of petitioner is clear. The evidence of his exposure to injury by trafile includes the layout of Bettes Corners, the cut of the railroad tracks across it, and the duties petitioner was required to perform. Petitioner says that the layout of the crossing was hazardous for one performing the duties assigned to him. In support of this, he points to the answer of one witness as to the action of the car which struck him. This witness stated that, “like a lot of them I seen there, jumping the gun” at the crossing, the driver of this car, on seeing the tail light of the train approaching, drove around the line of cars on the street adjacent to the train and, as he was turning left onto the other street, hit petitioner, who was standing near the passing train and flagging the traffic. There is no claim that the intersection was dark or that the regular railroad crossing warning, lights, bells, etc., were not properly working at the time. Nor is it disputed that the petitioner was waving a lighted lantern in each hand. Likewise the intoxicated condition of the driver is not in. controversy, nor is the fact that he passed through a traffic stop sign immediately before hitting-petitioner and violated other local traffic safety measures designed to protect persons from injury at the crossing.
  The trial court submitted the issue of negligence to the jury, which found the railroad negligent “in part” because it failed to afford “enough protection.” Judgment for petitioner was entered on the verdict for $25,000. The Court of,Appeals of Ohio reversed, finding that “there was a complete failure of proof to establish the negligence.”-. It said that it was not “reasonably foreseeable” that petitioner “would' be injured by the actions of a drunken driver, violating five traffic statutes . . . .” . 108 Ohio App. 124, 131, 161 N. E. 2d 60, 66. After the Supreme Court of Ohio dismissed the appeal, 168 Ohio St. 335, 154 N. E. 2d 442, we granted certiorari, 359 U. S. 958.
  In Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957), we laid down the rule that “[jjudicial appraisal of the proofs to determine . whether a jury question is pre- ■ sented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death.” Id., at 506-507. In measuring Ohio’s disposition of the case here by the Rogers yardstick, we must affirm. The Act does not make the employer an insurer. Here petitioner had been working at Bettes Corners for seven years, performing these same duties under like circumstances and, for some three years, on this identical midnight shift. No' accidents had occurred during that long period. In-light of this background, we believe that the .evidence here was so thin that, on a judicial.appraisal, the conclusion must be drawn that negligence on the part of the railroad could have played no part in petitioner’s injury.
  The contention of petitioner is that the witness’ remark, “like a lot' of them I seen there,- jumping the gun,” was testimony of other occurrences at the crossing similar to the one here involved. The burden of proving that the crossing was an unsafe place to work was on ■ petitioner. It depended on some type of testimony showing the hazards at the crossing; . There is no evidence of complaint to the railroad, nor is there other testimony of similar, occurrences-in the record. In making the judicial appraisal of this tenuous proof, Ohio’s Court of Appeals held it not sufficient. It found that there was “no evidence of prior occurrences of the kind • here under consideration.” in the record. Indeed, unless, these 11 words of the witness can be said with reason to be sufficient, there is none. Under such circumstances, they are too slender a reed for us to say that the decision of Ohio’s court .is erroneous.
  We therefore conclude, in light of. these considerations, that the judgment must be
  Affirmed
  Mr. Justice Frankfurter.
  The opinion of my Brother Clark demonstrates, insofar as demonstration is possible in law, that this case should never have been brought here. In accordance with the views that I expressed in Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 524 (1957), and in which I have since persisted, the appropriate disposition would be dismissal of the writ of certiorari as improvidently granted. If these views were enforced under the special circumstances of this case, affirmance by an equally divided Court would result. Thereby this casé would be cast into the limbo of unexplained adjudications, and the lower courts, as well as the profession, would be deprived of knowing the circumstances of this litigation and the basis of our disposition of it. Since I have registered my conviction on what I believe to be-the proper disposition of the case, it is not undue compromise with principle for me to join Brother Clark’s opinion in order to make póssible a Court opinion.
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