*1 ADJUDGED CASES THE
IN TILE STATES, UNITED OE SUPREMECOURT AT TERM, 1906. OCTOBER AND PITTS ROCHESTER BUFFALO, COMPANY. RAILWAY BURG PENNSYLVANIA. THE OF STATE OF COURT TO THE SUPREME ERROR 4, Decided March Argued 1907. January 21, 1907. 18, No. hearsay constitute evidence on although based of a witness Statements to, hearsay. seasonably objected as cause unless 2, Safety Appliance 2 of of March as provisions The Act any April 1, declaring it to unlawful for common amended permit to be to haul or hauled engaged in interstate carrier commerce moving equipped commerce not interstate on its car used'in used line can be by impact, and which un- couplers coupling automatically cars, necessity going between ends coupled without .men rails, including running locomotives and to-all of cars relate kinds n U. S. 1. steam shovel cars. Johnson v.'Southern Pacific object protect lives limbs railroad of that statute was to tlie couplers unnecessary operating the employés by rendering it for men moving cars, “used in inter- go and the words' between the ends in a narrow occurring not to be taken sense. state traffic” therein are upon Safety 2,1893, Appliance In a based Act of March amended suit called, 1, 1896, negative proviso April is not act, proofs. proviso pleadings 6 of said either dr Such .§ in his merely rely exception creates an and if the defendant wishes to thereon exception; burden is upon bring it to terms of the itself within the up those who set it. exception such must establish question duly proper proper Where Federal at in a raised time and manner in the state court and the state court neces- (1) VOL. COY-1 TERM, Argument for Plaintiff Error. sarily involvеs the such this court on writ of error decision judgment although will state court its made review *2 question. ruling no reference to the And if it is evident that the of the purporting only premise to state court- deal -with local law has for its mistake, necessary cognizable concomitant a that be sufficient a warrant review. dangerous Assumption machinery, of risk as extended to conditions of like, obviously premises and into commonly shades as un- degree The difference two is of derstood. between the one rather than of kind. Coupler having the Automatic employe Section 8 Act exonerated the conditions, specified risk employé’s rights from under regard by charging in assump- that should not be sacrificed him with name, example, tion of risk under another with negli- gence. contributory negligence employe this case the so-called of the
In deceased dependent upon statute, with was so involved and erroneous views must, judgment complained that the reversed. 10S, reversed. 207 Pa. St.
This facts arc stated the opinion. D. McKenney Mr. Frederic and Mr. Luther M. Walter, Mr. Edward A. and Mr. A. Truitt Moseley J. with whom were fyr brief, error: shovel which the deceased, The steam in the performance of brakeman, as a was duty his endeavoring to the couple up was a within “car” 2 caboose the"'purview section of the- commonly of March known as the “Safety act Appli Act.” The of that purpose ance act was to promote safety and travelers employés upon railroads; the'act is remedial and in'its character should be construed so as best accom and intent of the purpose Congress. Johnson v. plish Co., 1; 196 U. S. Kansas City Southern Co. v. Crocker, Pacific 262; Thomas v. So. Railroad Rep. Co., 222; 11 38 Georgia, Antonio &c. Ry. 255; Perez v. San Co., Texas Civ. App. Webb, Pac. 72 S. Ry. Tex. & W. Rep. shovel was-én from
The steam route New Limestone, York, in Pennsylvánia. That the point steam shovel was bolted ato which was platform' supported on trucks running upon docs the rails not conclusion its against .militate v., BUFFALO, ROCHESTER, &c. RY. Argument for U. S. Plaintiff Error. lines movement across state one point State to in another constituted interstate point commerce. Though its own trucks on its supported by own it running wheels nevertheless freight being was transported defend ant in error in of its business pursuance general as cоmmon carrier.' Gibbons v. 9 Wh. Ogden, Lottery case, 321-345; Peoria & Pekin Union Ry. C., Co. v. R. I. & Ry. P. Illinois,
Inasmuch as car the steam shovel within the purview it follows as' was statute, equipped not automatic coupler required by statute its movement (cid:127) inwas violation of law. 8 of Section the act of March 2, 1893, that if provides any of a common employé carrier subject the act is car in injured by contrary use to the provision act shall employé deemed to have assumed *3 the risk thereby occasioned. our
It is contention that the doctrine of of risk in this case was so inextricably interwoven the question (cid:127) of on the of supposed part the de- ceased that prime the matter for adjudication the .by state applicability court the of the Federal statute to the facts by disclosed the evidenсe. The refusal of- the state court to to the accord statute -controlling influence constituted, upon and by the facts shown the evidence, circumstances reversible error.
This court has jurisdiction to review judgments of the of Court a State when a Supreme Federal-"question has been raised and disposed byof that court. properly Whether a right sufñciéntly pleaded to the brought Federal of the state attention court is itself Federal question, and the of court this on writ of decision error is not concluded the by taken by highest Texas, view court v. Carter State* S. 442, 447, 177 U. Neal v. U. S. citing Delaware, 370, 396-397; Mitchell v. Clark, 645; S. v. 633, Boyd Thayer, 110 U. S. U. court party
Where -this asserts that the final judgment TERM, 1906.'
Argument
in Error.
IT. S.
Plaintiff
20Ó
him a
immunity
a State
or
right
denied
highest
court
or-laws of the United
under
Constitution
set
claimed
up
finds that a Federal question involving
and the court
States
below,
raised
of this court
jurisdiction
such claim was properly
by
cannot be defeated
the mere
to review that
judgment
of the
court of the State to refer
highest
failure or the refusal
v.
Erie
R. Co.
Purdy,
so raised.
R.
question
that the state court considered the case to
It is immaterial
law untrammeled
within
principles
general
fall
The
statute,
Federal
statutory
grasp
enactments.
have
the general
must first
been released before
had,
construction,
scope,
appli-
law can be
given play.
by.
to' the facts
cability of the statute invoked
disclosed.
respect
party
Federal
which
questions
evidence raise
denied,
and whose
statute,
claims under such
claim
who
this court. Anderson v.
to invоke the
right
has a
Carkins,
While it this court cannot enter upon is conceded court is jury as to whether the- a state finding, inquiry evidence, Kansas & Texas R. R. Co. Missouri, against as to the suffi Haber, nevertheless the question U. bearing' of the evidence as ciency, legal effect competency, in the the trial of Federal law raised course of may conclusion court support reached' state be. of a State court, reviewed court error supreme review proceedings juris of inferior courts of original Mackey Dillon, Richards, diction. 4 How. Dower v. *4 U. S. 151 658.
Before this steam shovel car defendant’s accepting was the it and to see duty inspect that it with the statute. complied v. 157 U. S. Mackey, 72; Railroad United States v. Ry., Southern 135 Fed. 122. Rep.
Thе cause proximate .of the accident this case was failure of the defendant company require equipment Holloway, automatic Railroad v. couplers. car-.with Co. BUFFALO, ROCHESTER, &c. RY. 5 Argument 205 U. S. for Plaintiff in Error. Elmore 334; v. Seaboard Air Line 41 Ry. S. E.
Rep. 786.
A violation of a statutory obligation by employer is negligence se. Union Pac. Co. v. per Ry. 152 McDonald, U. S. and cases cited. will Contributory bar a recovery when defendant itself has violated positive of law. Flint requirement &c. R. v. Lull, Co. 28 Michigan, 510, 515; 19 Wall. Carterville Pennsylvania, Coal Co. v. Abbott, Illinois, 495; M. & B. City, Kansas R. R. v. Alabama, Flippo,
The evidence this case should have been submitted to the It well be doubted whether jury. there is any evidence on the of deceased. It part can certainly not be said that all from the minds, would evidence,' arrive at the cоnclusion that deceased had been guilty negligence causing his own death. The decisions this court have well settled the law to be that the go case must to the jury wherever there is reasonable ordinary minds to arrive at different conclusions. Railroad Co. v. Stout, 17 Wall.
The witnesses as to occurrence of the accident the. were em of the defendant in ployes err’or and in a sense were interested witnesses; therefore the measure of credence-to be given their evidence'should have been left to the jury. Texas & Pac. R. Carlin, Co. v. 354, 361.
The defendant error by to haul refusing defective injury car could have avoided -Schlemmer, although Schlemmer have been of ordinary might guilty want of care caution, still the defendant error was liablе, since reasonable care and using prudence it avoided might have Trunk consequences plaintiff’s Grand negligence. Co. v. U. S. 408. Ry. Ives,
From fact of the injury the mere occurrence -the Pac. R. R. is not to be Northern presumed. Everett, U. S. 107.
In Pennsylvania, the courts of as well as those of the United 'the of decision in more recent cases is to the States, trend *5 TERM, 1906. 6 TI. S. (cid:127)Argument 205 for Defendant Error. all and in which both the evidence in cases that, except effect way, all one be drawn therefrom are which inferences are for the contributory negligence and questions 387; Pa. Ct. Co., Min. 28 Super. Esher v. Mineral R. & jury.. 584; Mahony Tp. West Pa. Hogan v. v. 165 Kilkeary Thackery, 7. v. Pa. Ct. Twp., Super. Fetterman Rush 28 352; &c. 174 Pa. Co,, ' (cid:127) M, Mr. H. McCauley with whom C. Olmsted,- Mr. E..' Stamm, in error: for defendant brief, Mr. A. C. were deсided the case The state Gourt having . a Federal which does not
contributory present negligence, here even would not question, its judgment reviewable had been a issue, question, another Federal though presenting raised. squarely had raised squarely a been question
Even Federal though de nevertheless, as the Pennsylvania, Court Supreme that court to be was found fense unnecessary for it would have been defense, it complete do so could failure to its pass upon the Federal v. Bur County Adams been error here. not have assigned v. Gibson, Chouteau 123; & R. R. 112 U. S. lington Co., Missouri Wall. 636. See v. 20 200; Memphis, S.U. Murdock also Jenkins v. U. S. Loewenthal, 110 a Federal ques Court of State decides Where thé Supreme and also decides against tion, rendering judgment, involving on аn independent ground error and broad to maintain the judgment, Federal question, enough will dismissed, considering'the the writ of error without v. McManus 554; Federal Hale v. 132 U. S. Akers, question. Brown Citizens’ 578; 327; 91 U. S. v. 92 U. S. O’Sullivan, Atwell, Bank v. v. Gibson, Board U. S. Chouteau Liquidation, 140; Missouri Rail 200; Adams v. & County Burlington v. S. road, 123; Guthard, U. Detroit City Railway S. 114 U. 133; Refining New v. Sugar Orleans Works Co. Louisiana Water 127 U. S. Gaillard, 125 U. De Saussure own upon plaintiff’s
The trial declared judge having BUFFALO, ROCHESTER, &c. RY. Argument for Defendant in Error. evidence she was not entitled to recover because of the contribu- tory deceased; negligence- Court Supreme *6 Pennsylvania affirmed having upon that alone, there is to which the nothing jurisdiction this court can attach. of risk and
Assumption contributory are separate and distinct defenses. The of 1893 act relates to the former only.. It does away not take the latter.
Under' law of Pennsylvania, would not plaintiff be en- titled to if recover even the deceased had not been guilty is because it the-law of that negligence, State that an employé assumes the risks incident to the discharge of his duties, even hazardous, those duties are' if though he has had an opportunity ascertain their charac- dangerous Patterson R. ter. v. R. 76 Pa. & Co., 389; St. Con- Pittsburgh nellsville v. R. R. Co. Pa. 276. Sentmeyer, 92 St.
The act 1893 does not apply all; this case at but it did away took simply defendant single ground of defense, namely, of risk the employé.
Recovery aby his or her own plaintiff precluded' where has proximately his or own contributed to her & injury. R. v. Washington Georgetown McDade, R. Co. 135 U. 7 Am. 554; Eng. & Enc. of Law, 371; Sunney Holt, v. 880;
Fed. v. Rep. Motey Pickle M. & G. 155. Co., Rep. Fed. under the act of 1893, where em Although applicable, will not be ployé deemed have the risk of assumed An nevertheless he must act employment, manner that shall him injury not befall of his the result own fault or The distinction between of risk” imprudence. “assumption and “contributory always has drawn. negligence” clearly been & R. R. v. McDade, 64; C. O. G. Narramore v. Ry. 298; Cordage 96 Fed. St. Louis Co. v. Co., Rep. Miller, v. 495; Co., 167; Fed. Hesse R. R. 58 Ohio Miner Rep. St. v. R. Co., Massachusetts, R. the act of 1893 that no of a provision com- employé carrier, who injured by any
mon car use contrary TERM, 1906. 205 ü. S.
Opinion, of the Court. shall be deemed'' automatic couplers, requiring the provisions can thereby, risk occasioned have have assumed the recovery by law principle effect on general has contrib his own proximately where precluded Winkler his own case, caused, injury. аnd, as to, uted & L. Co. Ry. C. C. C. St. R., & R. R. 90; v. Phila. 53 Atl. Rep. 224; D. & R. R. R. Co. Arrighi, v. G. Baker, 91 Fed. Rep. v. C. C. & L. R. 96 R., Narramore v. C. St. 347; Rep. 129 Fed. E. 642; Ry. Craig, L. & W. Co. 73 Fed. Rep. 298; Fed. Rep. Co., Dixon v. W. U. Tel. Kimball, Rep. 104 Fed. Hodges Trunk Ry. Grand 27 Am. 630; Kilpatrick v. 68 Fed. Rep. Cases, R. R. & Eng. HoCmes of the court.
Mr. Justice .delivered *7 n death, intestate, the plaintiff’s This is an action of. the. a car to a while shovel Schlemmer, couple M. to trying Adám at and the direction A nonsuit was directed the trial caboose. of The shovel Court the State. was sustained Supéreme Pennsylvania way of a train on its through car was part with an automatic in and’was not York, equipped a New point c. 2, 1893, 196, of March coupler § accordance the/act had an iron of such a it Coupler Instead 27 Stat. drawbar about a projecting undérneath the car pin fastened about eighty car. drawbar weighed This beyond foot was this end its frеe end and''down. On played up pounds end, had the free and the be done eye, coupling lifting to go in an foot, that it should enter a slot automaticv possibly eye. on the caboose and allow a drop coupler pin through its to the on the shovel car and to absence buffers Owing caboose, so that it over on the would those being high pass - car and caboose them would crush one between made. came failed to be they together-and coupling was train as the coupling Schlemmer-was ordered make .to be- so he the caboose. To do had glowly get approaching of the bottom cars, below the level the, keeping tween BUFFALO, ROCHESTER, &c. RY. Opinion of the Court. shovel car. It was dusk and in' obey endeavoring and to order the drawbar he rose a guide little too high, very as and, he failed to hit the slot, top his head was crushed. The her declaration that the defendant alleged car transporting shovel from State to State and that the coupler was not such as was required by laws. existing At the trial special attention was called to the United States statute part case. plaintiff’s The court di- having rected with leave to the plaintiff to move to nonsuit. .take “ aoff, motion was made on the others, ground, among under the United statute, States in this specially pleaded case, the decedent was not to have deemed assumed the risk owing to the fact that car was not with an equipped automatic coupler.” thus raised. was dеalt with .by the court the motion. were overruling Exceptions allowed and an' appeal taken. the errors one Among “in assigned the shovel car was holding car used in interstate or any commerce other kind of traffic,” the words the court below. The Supreme.Court affirmed the words judgment, that we shall- quote. We are plaintiff’s were saved and that rights case, we have jurisdiction of the to certain subject matters that we -shall discuss.
On the merits there are two lesser questions be disposed we before come the main one.' A doubt is suggested whether shovel car inwas course transportation between in different points States, and also an argument made that not a it was car within the- contemplation of On the *8 matter former there séems to have been dispute below. The court trial states the fact as by shown the evidence, testimony that the car was from Limestone, New coming York, forth, is Which, set based on of although report others, the was at evidence, least unless objected to as hearsay. Damon v. Carrol, 163 Massachusetts, 404, 408, 409. It was testimony the of the defendant’s -special employed to agent Ihe investigate matter.
The is nearly latter pretty by Johnson v. answered TERM, 1906.
Opinion of
Court.
205 U. S.
1,
observed,
196 U. S.
16. As there
Southern Pacific
car’
context, subject
'any
“Tested
matter and
object,
loco-
rails,
all kinds
cars
running
meant
including
“The
was to
lives
limbs
object
protect
motives.”
unnecessary
a man
employés by
of railroad
it
for
rendering
couplers
between the ends of the cars.”
go
operating
to shovel
as well
loco-
These considerations
cars
as to
apply
“
show
words
motives, and
that the
interstate
moving
used
”
narrow,
(cid:127)
in a
not be taken
later act
traffic should
sense. The
c.
1903,
976,
943,
of March
37 Stat.
2,
pro-
that
enacting
vehicles,
be held to
to all cars and similar
vision shall
apply
an
but
our
(cid:127)may
side,
used
either
argument-on
as
intent
A was made faint that the in. 6 of the suggestion proviso in it apply shall trains of four- act, nothing composed was not cars, wheel fair infer plaintiff. The negatived this of: Unusually from the evidence car ence an large is But, further, wished to ordinary defendant pattern. if'the burden was it to itself rely upоn proviso, bring within, word The used our exception. “provided” many other beside that purposes expressing legislation The, is. condition. this clause only expressed condition from the excepted four-wheeled cars requirements shall In of the act. substance' creates merely exception,^ said to of such clauses. which has be the general, purpose been v. Baird, Interstate 37. 25, 36, CommerceCommission carves is, “The rule law that proviso special'ex general out of who.set only body act; up those ceptions Ryan Carter, must etc. v. exception it,” .establish v. Dixon, 141, U. 165. Peters; United States rule to construction equally The to the bur applied applied in a case this. United proof Cook, den like States 17 Wall. Hart, Commonwealth Cush. We now to main the. question. opinion, come Act follows: Court “Whether .Supreme Congress *9 &c.,RY. SCHLEMMER v. BUFFALO,-ROCHESTER, U. Opinion of the Court. . . any has all in applicability at actions for negligence in the courts of Pennsylvania, question does not arise case, and we therefore it. express opinion upon The learned bfelow judge the nonsuit on the ground sustained of the deceased’s contributory and the judgment his is affirmed on on opinion that subject.” It is said that the existence of contributory is not a Federal and that as the decision off went 'on that there is nothing to revision open here. We do certainly not mean to qualify dr limit the that, rule
.
for this court to entertain jurisdiction of a writ of
error to
court,
state
it must appear affirmatively that
the state court
could not have reached its
tacitly,
without
if
not
expressly,
the Federal
deciding
matter. Bachtel v. Wilson,
January
7, 1907,
U. S. 36. But on the
hand,
other
the question
duly
raised and the. .judgment necessarily, or
by what
appears
fact,
involves such a decision, then this
will
court
take jurisdiction,
below
although
says
nothing about
it. Kaukauna Water Power
Bay
Co. v. Green
&
Canal
Missi.
U. S. 254. And if it is evident
to deal
law
ruling purporting
only
local
has for its pre
concomitant a
necessary
mise or
cognizable mistake,
to warrant
Terre Haute &
be sufficient
review.
Indianapolis
Indiana,
Railroad Co. v.
Assumption commonly Negligence as understоod.' consists negligence or common experience special knowledge which conduct be so com likely produce shows to result the actor under the circumstances known to the actor, of, plained for that it was result, although certain, is answerable he held isHe held to assume the risk or foreseen. intended, upon Choctaw, Oklahoma & R. R. McDade, Co. v. ground. same Gulf Apart U. the notion of rather contract, this., broad form of the latter shadowy applied conception, of the difference two ideas in the of their degree practical harm. particular preliminary conduct proximity into dangerous employment relation is said getting accompanied the risk. The act more assumption immediаtely specific accident is called leading negligent. two is difference between the one of than degree But the rather when a statute éxonerates kind; a servant from if the same time it of contributory at leaves defense former, to the open master, still a matter which we taken, then, great unless care be opinion, express BUFFALO, RY. &c. tíCHLEMHÉR ROCHESTER, Opinion of the Court. him with will charging be sacrificed rights simply servant’s risk under another name. Especially assumption to have where some at seem Pennsylvania, cases, least, true of risk and controvertible' negligence as treated & R. R. Pittsburg Patterson Connellsrille terms. that, this has help happened St. We cannot thinking
Pa. as that case, as well Schlemmer’s ruling upon the present with was so involved erronеous dependent upon statute that stood the statute views of the a wound. would suffer if any, to the facts, only, ground,
To recur for moment Schlemmer could be is that charged on which he was between the tracks he was twice warned when *11 had to his head down. It is that he keep conductor yard true be in stick, company which the rules of the to used required case, it or at but could not have been used this coupling, the could not be and was not assumed for contrary the least (cid:127) him- was to necessary a nonsuit. It directing purpose did, rails and under the car as he the between shovel get that he should do so. But the opinion contemplated his orders which, as has been the seen, Supreme trial judge, warning decision on the fact of did not refers, put the Court it with a that an contrary, began statement theOh alone. if of unusual he has notice dangers the risk' even takes employe Then it voluntarily himself to them. exposes of them the coup- the deceased to make attempted that say went on of the that knowledge danger, imply full with ling to_ Arrange- of no using was guilty defendant It then decided terms that the shovel it used. which ment these Only after meaning within not a car car otherwise, were law the de- that, it say did preliminaries it some- contributory negligence; leaving was guilty ceased was. what the what uncertain the final say ruling that extravagant us not It seems to errors that that earlier with the so implicated We arc allowed to stand. not be should the judgment alone TERM, Brewer, Beckham, Day, JJ., McKenna and dissеnting. that clearly opinion Schlemmer’s were in im- rights no way his between the rails and paired by getting attempting he was saved by the cars. So far thfe couple provision that he if negligence, any, did not assume the risk. came later. We doubt this was court below. But opinion clearly nonsuit has been and in suppose put terms on his head too after he had been warned. raising high Schlemmer’s with dealing case, Still we could not avoid the- because it still duty to see that his privilege against being would be our held the risk of the situation should to have assumed not-be impaired under another thing the same name. If a man not by holding desiring live, but is said to chargeable intent on suicide of law as matter when he miscalculates the him an inch, of the car behind while his duty height requires to dirеct crouching position, heavy in his drawbar him, him in front, into a small slot and' above moving this August evening, nine of dusk, nearly utterly at impossi- however ruling not, unconsciously, us to interpret ble for notion that to some extent the man bad taken introducing in the But by being place at all. what- danger the risk of of the local we are of meaning courts, have been may ever of such -a minute miscalculation, the' possibility whatever it circumstances, called, was so under attached to the risk which Schlemmer clearly inevitably and to enforce the statute assume, requires did be reversed. should *12 reversed.
Judgment with whom concurred Mr. Justice ^Brewer, Mr. Justice and Mr. Day,- McKenna 'Justice Mr. Justice Pecicham, dissenting. in judgment this case and the from
I dissent for these reasons: Common Court of Jeffersоn in the action Pleas.
This was an on of damages to recover Pennsylvania, County, account On the trial the court oi- plaintiff. of of husband death ..the ,&c. BUFFALO, ROCHESTER, v. RY. 15 JJ., dissenting. Peckhaji, U. S. Brewer, 205 McKenna Day, on the contributory a nonsuit dered decedent, with leave to the part move This motion same off. overruled; to take the made and was entered, for the defendant which was affirmed Court of the State. The decedent was killed Supreme a steam shovel to couple while a caboose. attempting moved being steam shovel interstate transportation with the safety was not equipped coupler required by of March 27 Stat. 531. The Congress eighth act of act provides:' of that section any such common carrier who any emрloyé
“That any locomotive, car train use contrary to injured or of this act shall not deemed thereby have the provision risk thereby occasioned, although continuing assumed carrier such after unlawful use employment been locomotive, brought car train his knowledge.” had while from the the burden of This, removing employe him risk, not relieve liability does con For the rule is well settled that negligence. while, tributory a violation of the nature, statutory obligation in cases of se, is and actionable negligence per injuries employer thereof, servants there is consequence sustained are ordinary the. rules relating aside setting (cid:127)no is a defense, which available as notwithstanding negligence, statute worded as statute, unless that so to leave doubt' to be also excluded. v. Carew Taylor this defense 470; 143 Krause v. Company, Massachusetts, Manufacturing 26; East &c. Tennessee, St. Railroad Company Ohio 53 Morgan, Queen 150; v. (Tenn.), 145, Dayton Coal, &c. Lea Rush, v. 15 v. 458; Hindman, 32 Reynolds Iowa, Tennessee, 95 Company, 849; Richmond, E. C. L. Buckner v. Worth, v. 146; Caswell 873; Victor Coal Company, 72 Mississippi, Company Railroad &c. 320; Admr., &c. v. Holum, Chicago, &c. Colorado, Muir, v. 299; v. Grand Wisconsin, Kilpatrick Railway Company, 288; Denver Vermont, & R. G. Railroad Railway, Trunk Rep. Fed. Winkler Phila- Arrighi, Company *13 TERM, Brewer, Peckham, Day, JJ., dissenting. McKenna and S.Ú. &c. Railroad Pennewilks delphia Delaware Company, Rep. 80. The Interstate Commerce Commission held this to be the rule reference to statute. 14th Ann. this particular Rep. Indeed it is not contended p. by majority that the defense of has beеn taken contributory negligence away.
That there is a vital difference between' of risk assumption and contributory As said this court in negligence clear. Choctaw, Oklahoma, McDade, &c. Railroad Company U. S. 64, 68: “The of risk is quite apart from contributory that of See also Union negligence.” Co. v. 161 U. S. 456. This Railway O’Brien, Pacific is so familiar and proposition, however, elementary that citation of authorities is superfluous.
In the motion for a nonsuit the second was that proposition upon “the evidence behalf of plaintiff proves conclusively that the accident because the deceased failed to happened keep'his least as low as the floor of the steam head at shovel—that this was the fault of exсlusively—and omission the deceased contributory guilty deceased there can recovery be no this case.”
In ordering nonsuit-the trial court said: “True, under said act he was not considered to have assumed certainly the risks of his but this is meant no employment, thereby, more than such risks as he was and re- exposed free from act. It would injury sulted' his own negligent that defendant would under such hardly argued liable, were the inflict an circumstances, employé voluntarily injury himself means of the use of the improperly equipped And yet car. is but a step
such an act. % íjí 5j< S}í ífc Sfc.#
“It very seems clear us whatever view we that, may take of this case, we are led to the conclusion that decedent legal was guilty of that contributed to his death, that the plaintiff, she or however deserving bе, however accident, regret much we the unfortunate recover.” cannot ROCHESTER, BUFFALO, &c. RY. .17 Peckham, Day, Brewer, JJ., dissenting. McKenna and *14 in the judgment following Court affirmed The Supreme curiam per opinion: in act of to the use of auto- Congress regard
"Whether in cars interstate commerce has employed on couplings matic all in in at actions for the courts negligence any applicability in is a that does not arise this question case, of Pennsylvania no it. upon express and we therefore learned on of the the nonsuit de- below sustained .judge contributory is affirmed- negligence, judgment ceased’s that subject.” on on his opinion contributory a non-Federal is"’ negligence question is
That that when a court decides a case-' dоubted, and state sufficient which are non-Federal and sustain grounds . has this court no Conceded. jurisdiction decision is mixed of law and a While sometimes attempt in whether the decedent fact, cage, in yet present the con warning given by after the ing coupling, to make unnecessarily negligently, solely lifted his head ductor, on from the' coming judg and in cases error fact, a question on of that court findings questions a state court the ment of held conclusive on us. See been have-always of fact Chrisman in and the cases cited 313, 319, many Miller, 197 opinion. o'ught from this brief that the case
It seem statement would -from jurisdiction. Escape, lack this dismissed be, in only accomplished ways: can one of these By 'conclusion testimony and that holding there investigation If the from came one negligence. case proof we courts consider might properly Federal whether the lower contributory negligence; but, was sufficient-evidence-.of there in different respect.,to obtains very above, shown- rule term, We this very court. said from state coming cases com reference Wilson, 204 U. case Bachtel v. pronounce this: “Before can court to we a state ing must .the Federal Constitution it conflict necessarily'in-con- was one this decision appear made to vol. cov—2 TERM,
Brewer, Peckham, Day, JJ., McKenna and dissenting. flict therewith, and not that possibly even it was.” probably Before then we can disturb this judgment of the Supreme Court of Pennsylvania it must (paraphrasing the language just little) quoted be made to that its appear decision of the question of contributory one necessarily disregard of the testimony and not that possibly or even probably it was.
It cannot be said that there was no evidence of the part of the decedent. The plaintiff’s testimony (and the none) defendant offered showed that deceased was an ex- perienced brakeman; the link and pin was in coupling constant use on other than passenger coaches; before the deceased went under the' car the pin had'- already set; been *15 that as he was under going the car he was twice notified to be careful and his head keep and down, yet, without any. necessity therefor being shown, he lifted- his head and' it was crushed between two cars; the that all he had to do was to guide the free end of the drawbar into the and slot, while the drawbar weighed seventy-five to eighty pounds, it was fastened at one and end, and lifting guiding was only and loose other end; that the drawheads were of the height and the standard body of the shovel car higher than that of the caboose. Imme; diately the coupling thereafter was made by another brakeman without If difficulty. an iron is dangerously hot; and one knows that it is hot and is warned not to it, touch and does touch it without any necessity therefor being shown, and is thereby burned, it is trifling 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 as- of risk and sumption contributory negligence. But in not to be view of the imputed in rulings the lower court, affirmed Supreme Court, say nothing the recog- nized and standing ability of that court. may
Or we hold that Pennsylvania courts intentionally, and without wrongfully evidence thereof found that' there SCHLEMMER v. BUFFALO, ROCHESTER, &c. RY. 19 JJ., dissenting. McKenna Brewer, Peckham, Day, .was in order to avoid the binding force- of the Federal law. During the course of the in argument, response to an counsel for interrogation, error bluntly charged that those courts. Of course this court always terms of speaks respectful decisions reviews, but of the most implication courteous language as certain as a direct charge.
It is intimated that the Pennsylvania courts confuse as- of risk sumption and contributory negligence—in other wоrds, are unmindful of difference them, between and Patterson &c. Railroad Pittsburg, 76 Pa. Company, St. is cited authority. That case decided more than thirty-years was. ago, might, fairly be therefore, not an expres- considered sion of present the- views of -those courts. But on examination -of the case, which a in favor of the railroad was reversed we find Supreme Court, this language which supposed 394): indicate the confusion- (pp. .is “In this we not to discussion, however, are forget that servant to exercise required ordinary If prudence’. instrumentality by which he is required perform his service obviously immediately is so dangerous, that a man of common would refuse use prudence it, master cannot be held liable for the In resulting damage. such case the lаw guilty servant concurrent adjudges negligence, and will him that aid to which he refuse otherwise would be entitled. servant, But where obedience to the requirement *16 incurs mastfer, machinery, the risk of which though dangerous, much so as to threaten not so immediate or it injury, is where that it reasonably safely used probable is extraor- rule is skill, caution or -different. In such dinary case the resulting liable for a accident.” master is in Narramore v. Curiously Cleveland, &c. enough Railway 499, 505, C. C. A. a recent decision of the Court Company, Circuit, in the of the Sixth opinion announced Appeals altogether is not Taft dissimilar: Judge language Circuit of risk contributory negligence approxi- and "“Assumption TERM, (cid:127)
Syllabus. is and so obvious imminent danger mate where the man would assume the risk of there- оrdinarily injury prudent though and danger, present appreciated, from. But where are in the habit-of and which many assuming, men is one which earn living who must are willing men assume prudent the risk one who assumes cannot be said extra compensation, contributory negligence if, view the having to be guilty reasonably he care assumed, uses commensurate danger risk of injurious One who the risk to avoid does consequences: who, by thereof, and reason suffers care, use such injury, not recover, and cannot negligence, guilty is master, injury, not the causes the because he, because and it.” cause jointly (cid:127)they I
For reasons dissent from the judgment, these say that Mr. am authorized to and’ Mr. Justice Peckham, Day concur in this dissent. Mr. Justice Justice McKenna UNITED MARSHAL. TREAT, STATES TINSLEY THE FOR THE COURT OF UNITED STATES FROM CIRCUIT APPEAL OF THE DISTRICT VIRGINIA. EASTERN . Argued 3, 4, 1906. 4, Decembеr Decided March No. 369. application judge the United States on- to remove from the A district is. is where triable defendant arrested the offense district where Stat., proceed- provision judicially and the Rev. § acts agreeably process to the usual mode in the ings are conducted to be application inquiry application has no against offenders to the State for removal. Stat., proceeding in a under Rev. While removal indictment conclusive, probable evidence of prima constitutes is not cause facie tending to offered the defendant show that no offense evidence sought is to which removal triable the district had been committed admissible; right mere but of a and its exclusion error the denial Constitution, under the Federal secured