Lead Opinion
.delivered the opinion of the court.
■ This is an action for the. death, of. the plaintiff’s intestate, Adám M. Schlemmer, while trying to couple a shovel car to a caboose. A nonsuit was directed at the trial and the direction was sustained by the Supéreme Court of the State. The shovel car was part of a train on its way through Pennsylvania from a point in New York, and’was not equipped with an automatic coupler in accordance with the/act of March 2, 1893, c. 196, § 2, 27 Stat. 531. Instead of such a Coupler it had an iron drawbar fastened undérneath the car by a pin and projecting about a foot beyond the car. This drawbar weighed about eighty pounds and its free end played up and''down. On this end was an eye, and the coupling had to be done by lifting the free end, possibly a foot, go that it should enter a slot in an automaticv coupler on the caboose and allow a pin to drop through the eye. Owing to the absence of buffers on the shovel car and to its being so high that it would pass over thosе on the caboose, the car - and caboose would crush any one between them if they came together-and the coupling failed to be made. Schlemmer-was ordered .to make the coupling as the train was glowly approaching the caboose. To do so he had to get between the, cars, keeping below the level of the bottom of the
The plaintiff in her declaration alleged that the defendant was transporting the shovel car from State to State and that the coupler was not such as was required by existing laws. At the trial special attention was called to the United States statute as part of the plaintiff’s case. The court having directed a nonsuit. with leave to the plaintiff to move to .take it off, a motion was made on the ground, among others, “ that under the United States statute, specially pleaded in this case, the decedent was not deemed to have assumed the risk owing to the fact that the car was not equipped with an automatic coupler.” The question thus raised. was dealt with .by the court in overruling the motion. Exceptions were allowed and an' appeal taken. Among the errors assigned was one “in holding that the shovel car was not a car used in interstate commerсe or any other kind of traffic,” the words of the court below. The Supreme.Court affirmed the judgment, in words that we shall- quote. We are of opinion that the plaintiff’s rights were saved and that we have jurisdiction of the case, subject to certain matters that we -shall discuss.
On the merits there are two lesser questions to be disposed of before we come to the main one.' A doubt is suggested whether the shovel car was in course of transportation between points in different Statеs, and also an argument is made that it was not a car within the- contemplation of § 2. On the former matter there séems to have been no dispute below. The trial court states the fact as shown by the evidence, and testimony that the car was coming from Limestone, New York, is set forth, Which, although based on the report of others, was evidence, at least unless objected to as hearsay. Damon v. Carrol, 163 Massachusetts, 404, 408, 409. It was the testimony of the defendant’s -special agent employed to investigate Ihe matter.
The latter question is pretty nearly answered by Johnson v.
A faint suggestion was made that the proviso in. § 6 of the act, that nothing in it shall apply to trains composed of four-wheel cars, was not negatived by the plaintiff. The fair inference from the evidence is that this wаs an Unusually large car of: the ordinary pattern. But, further, if'the defendant wished to rely upon this proviso, the burden was upon it to bring itself within, the exception. The word “provided” is used in our legislation for many other purposes beside that of expressing a condition. The, only condition expressed by this clause is. that four-wheeled cars shall be excepted from the requirements of the act. In substance' it merely creates an exception,^ which has been said to be the genеral, purpose of such clauses. Interstate Commerce Commission v. Baird,
We come now to the main question. The opinion, of the. .Supreme Court was as follows: “Whether the Act of Congress
. We certainly do not mean to qualify dr limit the rule that, for this court to entertain jurisdiction of a writ of error to a state court, it must appear affirmatively that the state court could not have reached its judgment without tacitly, if not expressly, deciding the Federal matter. Bachtel v. Wilson, January 7, 1907,
It is enacted by § 8- of the act that any employé injured by any car in use contrary to the provisions of the act, shall not be deemed to ■ have assumed the risk thereby occasioned, although continuing in the employment of the carrier after the unlawful use had been brought to his knowledge. An early, if not the earliest, application of the phrase “ assumption of risk ” was the establishment of-the exception to the liability of a master, for the negligence of his servant when the person injured was a fellow servant of the negligent man. Whether an. 'actual assumption by contract was supposed on grounds of economic theory, or the assumption was imputed because of a
Assumption of risk in this broad sense Obviously shades into negligence as commonly understоod.' Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. He is held to assume the risk upon the same ground. Choctaw, Oklahoma & Gulf R. R. Co. v. McDade,
To recur for a moment to the facts, the only, ground, if any, on which Schlemmer could be charged with negligence is that when he was between the tracks he was twice warned by the yard conductor to keep his head down. It is true that he had a stick, which the rules of the company required to be used in coupling, but it could not have been used in this case, or at least the contrary could not be and was not assumed for the purpose of • directing a nonsuit. It was necessary for him- to get between the rails and under the shovel car as he did, and his orders contemplated that he should do so. But the opinion of the trial judge, to which, as has been seen, the Supreme Court refers, did not put the decision on the fact of warning alonе. Oh the contrary, it began with a statement that an employe takes the risk' even of unusual dangers if he has notice of them and voluntarily exposes himself to them. Then it went on to say that the deceased attempted to make the coupling with the full knowledge of the danger, and to_ imply that the defendant was guilty of no negligence in using the Arrangement which it used. It then decided in terms that the shovel car was not a car within the meaning of § 2. Only after these preliminaries did it say that, were the law otherwise, the deceased was guilty of contributory negligence; leaving it somewhat uncertain what the negligence was.
It seems to us not extravagant to say that the final ruling was so implicated with the earlier errors that on that ground alone the judgment should not be allowed to stand. We arc
Judgment reversed.
Dissenting Opinion
with whom concurred Mr. Justice Pecicham, Mr. Justice McKenna and Mr. 'Justice Day,dissenting.
I dissent from the opinion and judgment in this case and for these reasons:
This was an action in the Common Pleas. Court оf Jefferson County, Pennsylvania, to recover damages on account of the death of ..the husband of plaintiff. On the trial the court oi
“That any employé of any such common carrier who may be injured by any locomotive, car or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, althоugh continuing in the employment of such carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge.”
This, while removing from the employe the burden of any assumption of risk, does not relieve him from liability for contributory negligence. For the rule is well settled that while, in cases of this nature, a violation of the statutory obligation of the employer is negligence per se, and actionable if injuries are sustained by servants in consequence thereof, there is •no setting aside of the. ordinary rules relating to contributory negligence, which is available as a defense, notwithstanding the statute, unless that statute is so worded as to leave no doubt' that this defense is also to be excluded. Taylor v. Carew Manufacturing Company, 143 Massachusetts, 470; Krause v. Morgan, 53 Ohio St. 26; East Tennessee, &c. Railroad Company v. Rush, 15 Lea (Tenn.), 145, 150; Queen v. Dayton Coal, &c. Company, 95 Tennessee, 458; Reynolds v. Hindman,
Thаt there is a vital difference between' assumption of risk and contributory negligence is clear. As said by this court in Choctaw, Oklahoma, &c. Railroad Company v. McDade,
In the motion for a nonsuit the second proposition was that “the evidence upon behalf of plaintiff proves conclusively that the accident happеned because the deceased failed to keep'his head at least as low as the floor of the steam shovel—that this omission was the fault of the deceased exclusively—and that deceased was guilty of contributory negligence and there can be no recovery in this case.”
In ordering the nonsuit-the trial court said:
“True, under said act he was not considered to have assumed the risks of his employment, but by this is certainly meant no more than such risks as he was exposed to thereby, and resulted' in injury freе from his own negligent act. It would hardly be argued that defendant would be liable, under such circumstances, were the employé to voluntarily inflict an injury upon himself by means of the use of the improperly equipped car. And yet it is but a step from contributory negligence to such an act.
Sfc.# % íjí 5j< S}í ífc
“It seems very clear to us that, whatever view we may take of this case, we are led to the legal conclusion that decedent was guilty of negligence that contributed to his death, and that the рlaintiff, however deserving she may be, or however much we regret the unfortunate accident, cannot recover.”
"Whether the act of Congress in regard to the use of automatic couplings on cars employed in interstate commerce has any applicability at all in actions for negligence in the courts of Pennsylvania is a question that does not arise in this case, and we therefore express no opinion upon it. The learned .judge below sustained the nonsuit on the ground of the deceased’s contributory negligence, and the judgment is affirmed-on his opinion on that subject.”
That contributory negligence is a non-Federal question is"’ not doubted, and that when a state court decides a case-' upon grounds which are non-Federal and sufficient to sustain the decision this court has no jurisdiction is Conceded. .
While sometimes negligence is a mixed question of law and fact, yet in the рresent cage, whether the decedent in attempting to make the coupling, after the warning given by the conductor, lifted his head unnecessarily and negligently, is solely a question of fact, and in cases coming on error from the' judgment of a state court the findings of that court on questions of fact have-always been held conclusive on us. See Chrisman v. Miller,
It would seem from this brief statement that the case o'ught to be, dismissed for lack of jurisdiction. Escape, -from this 'conclusion can оnly be accomplished in one of these ways: By investigation of the testimony and holding that there was no proof of contributory negligence. If the case came from one of the lower Federal courts we might properly consider whether there was sufficient-evidence-.of contributory negligence; but, as shown- above, a very different rule obtains in respect.,to cases coming from a state court. We said this very term, in Bachtel v. Wilson,
It cannot be said that there was no evidence of negligence on the part of the decedent. The plaintiff’s testimony (and the defendant offered none) showed that deceased was an experienced brakeman; that the link and pin coupling was in constant use on other than passenger coaches; that before the deceased went under the' car the pin had'- already been set; that as he was going under the car he was twice notified to be careful and keep his head down, and yet, without any. necessity therefor being shown, he lifted- his head and' it was crushed between the two cars; that all he had to do was to guide the free end of the drawbar into the slot, and while the drawbar weighed seventy-five to eighty pounds, it was fastened at one end, and the lifting and guiding was only of the other and loose end; that the drawheads were of the standard height and the body of the shovel car higher than that of the caboose. Imme; diately thereafter the coupling was made by another brakeman without difficulty. If an iron is dangerously hot; and one knows that it is hot and is warned not to touch it, and does touch it without any necessity therefor being shown, and is thereby burned, it is trifling to say that there is no evidence of negligence. ‘
A second alternative is that this court finds that the Supreme Court of Pennsylvania recognizes no difference between assumption of risk and contributory negligence. But that is not to be imputed in view of the rulings in the lower court, affirmed by the Supreme Court, to say nothing of the recognized standing and ability of that court.
Or we may hold that the Pennsylvania courts intentionally, wrongfully and without any evidence thereof found that' there
It is intimated that the Pennsylvania courts confuse assumption of risk and contributory negligence—in other words, are unmindful of the difference between them, and Patterson v. Pittsburg, &c. Railroad Company, 76 Pa. St. 389, is cited as authority. That case was. decided more than thirty-years ago, and might, therefore, fairly be considered not an exрression of the- present views of -those courts. But on examination - of the case, in which a judgment in favor of the railroad was reversed by the Supreme Court, we find this language which .is supposed to indicate the confusion- (pp. 393, 394):
“In this discussion, however, we are not to forget that the servant is required to exercise ordinary prudence’. If the instrumentality by which he is required to perform his service is so obviously and immediately dangerous, that a man of common prudence would refusе to use it, the master cannot be held liable for the resulting damage. In such case the law adjudges the servant guilty of concurrent negligence, and will refuse him that aid to which he otherwise would be entitled. But where the servant, in obedience to the requirement of the mastfer, incurs the risk of machinery, which though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable that it may be safely used by extraordinary caution or skill, the rule is -different. In such casе the master is liable for a resulting accident.”
Curiously enough in Narramore v. Cleveland, &c. Railway Company,
"“Assumption of risk and contributory negligence approxi
For these reasons I dissent from the opinion and judgment, and’ am authorized to say that Mr. Justice Peckham, Mr. Justice McKenna and Mr. Justice Day concur in this dissent.