Where on writ of error the case is reversed on the federal
question and remanded to the highest state court for further
proceedings in conformity with the opinion of this Court, the state
court should, in its remittitur require the further proceedings by
the lower court to be in conformity with the opinion of this Court,
as the matter involved is a federal right within the protection of
this Court.
If, however, the trial court on the second trial of a case
reversed by this Court on the federal question does give to the
statute involved the construction and effect given by this Court,
the judgment will not be reversed because the remittitur from the
highest court to which the mandate of this Court was sent did not
specifically direct that further proceedings be had in conformity
with the opinion of this Court.
The Safety Appliance Acts of March 2, 1893, c.196, 27 Stat. 531;
April 1, 1896, c. 87, 29 Stat. 85; March 2, 1903, c. 976, 32 Stat.
943, took away from the carrier the defense of assumption of risk
by the employee, but did not affect the defense of contributory
negligence.
There is a practical and clear distinction between assumption of
risk and contributory negligence. By the former, the employee
assumes the risk of ordinary dangers of occupation and those
dangers that are plainly observable; the latter is the omission of
the employee to use those precautions for his own safety which
ordinary prudence requires.
Under the Safety Appliance Acts, an employee does not, by reason
of his knowledge of the fact, take upon himself the risk of injury
from a car unequipped as required by the acts; but he is not
absolved from duty to use ordinary care for his own protection
merely because the carrier has failed to comply with the law, and,
in the absence of legislation taking it away, the defense of
contributory negligence is open.
On the record in this case, there appears to have been
contributory
Page 220 U. S. 591
negligence on the part of plaintiff's intestate, apart from the
question of assumption of risk, and the state court denied
plaintiff no federal right under the Safety Appliance Acts in
dismissing the complaint on the ground of contributory
negligence.
222 Pa. 470 affirmed.
The facts, which involve the construction of the Safety
Appliance Acts and the duties and rights of carriers and of their
employees thereunder, are stated in the opinion.
MR. JUSTICE DAY delivered the opinion of the Court.
This action was brought in a Pennsylvania court to recover for
wrongfully causing the death of Adam M. Schlemmer, plaintiff's
intestate, as a result of injuries received while in the employ of
the railroad company. The case has been once before in this Court,
and is reported in
205 U. S. 205 U.S.
1. The injury was received while Schlemmer, an employee of the
defendant railroad company, was endeavoring to couple a shovel car
to the caboose of one of the railroad trains of the defendant
company.
Before the case first came here, the Supreme Court of
Pennsylvania had held that the plaintiff could not recover damages
because of the contributory negligence of the deceased. 207 Pa.198.
This Court reversed the Supreme Court of Pennsylvania and remanded
the case for further proceedings in conformity with the opinion of
this Court.
For a proper understanding of the case a brief statement
Page 220 U. S. 592
of the facts will be necessary. The shovel car was not equipped
with an automatic coupler, as required by the Act of March 2, 1893,
c. 196, § 2, 27 Stat. 531, and that fact was the basis of the
action for damages. The shovel car had an iron drawbar, weighing
somewhere about eighty pounds, protruding beyond the end of the
shovel car. The end of this drawbar had a small opening, or eye,
into which an iron pin was to be fitted when the coupling was made;
this was to be effected by placing the end of the drawbar into the
slot of the automatic coupler with which the caboose was equipped.
Owing to the difference in the height, the end of the shovel car
would pass over the automatic coupler on the caboose in case of an
unsuccessful attempt to make the coupling, and the end of the
shovel car would come in contact with the end of the caboose.
Plaintiff's intestate was an experienced brakeman, having been
in the service fifteen or sixteen years. At the time when he
undertook to couple the train with the shovel car to the end of the
caboose, he went under the end of the shovel car and attempted to
raise the iron drawbar so as to cause it to fit into the slot of
the automatic coupler on the caboose. While so doing, his head was
caught between the ends of the shovel car and the caboose, and he
was almost instantly killed. This happened between wight and nine
o'clock on an evening in the month of August, and while dusk had
gathered, it was not very dark, and the testimony tends to show
that the situation was plainly observable.
When this case was first before the Supreme Court of
Pennsylvania, that court expressed doubt as to whether the act of
Congress applied in actions of negligence in the courts of
Pennsylvania, and the judgment on the nonsuit in the court below
was sustained because of the contributory negligence of the
deceased.
This Court held that the shovel car was in course of
Page 220 U. S. 593
transportation between points of different states, and therefore
was being used in interstate commerce; that the shovel car was a
car within contemplation of § 2 of the act of Congress; that § 8 of
that act had deprived the company of the defense of assumed risk on
the part of an employee; that the ruling in the Pennsylvania court
upon contributory negligence was so dependent upon an erroneous
construction of the statute that it could not stand.
205 U. S. 205 U.S.
1,
205 U. S. 13. As
the alleged right to recover was under a federal statute, alleged
to have been improperly construed against the plaintiff in error,
the case presented a claim of federal right, a denial of which was
reviewable here, and the case, for the reason stated, was reversed
by this Court and sent back for further proceedings in conformity
with the opinion of this Court.
We find no occasion to depart from the former decision, and will
proceed to examine the record as now presented, which, in material
respects, differs from the one previously before the court. It is
first objected by the plaintiff in error that the Supreme Court of
Pennsylvania remanded the case to the lower court for trial
contrary to the mandate sent down upon the reversal by this Court.
The Supreme Court of Pennsylvania remitted the case, after receipt
of the mandate from this Court, to the lower court, to be retried
"on the settled principles of contributory negligence, as
heretofore declared in the decisions of this Court" -- Supreme
Court of Pennsylvania. The counsel for plaintiff in error moved the
Supreme Court of Pennsylvania to amend its judgment and remittitur
so as to conform with the mandate of this Court, which motion was
overruled.
We are of opinion that the order and remittitur of the Supreme
Court of Pennsylvania, in compliance with the mandate of this
Court, should have required the further proceedings to conform to
the opinion of this Court, as its mandate required, and as was
within the authority of this
Page 220 U. S. 594
Court, the matter involved being a right of federal creation
within the ultimate protection of this Court.
If an examination of the record indicated that, by reason of
this mandate, the subsequent proceedings in the state court had
operated to deprive the plaintiff in error of the benefit of a
trial under the federal statute properly construed, we should be
constrained to reverse the case. But an examination of the record
discloses that the trial judge regarded the decision of this Court
as settling the right of the plaintiff in error to rely upon the
federal statute in question, and as conclusive of the fact that the
shovel car was being employed in interstate commerce at the time of
the injury, and was a car within the meaning of the act, and that
assumption of risk was no defense to the action. So it does not
appear that the form of mandate sent down by the Supreme Court of
Pennsylvania, after the case was reversed here, worked to the
prejudice of the plaintiff in error.
The trial court submitted the case to the jury upon the issues
joined under the federal statute, including the question whether
the plaintiff's intestate, at the time of the injury, had been
guilty of contributory negligence. Under these instructions, the
jury found a verdict for the plaintiff.
The court then granted a rule to show cause why judgment should
not be rendered
non obstante veredicto, which motion was
granted, and an opinion delivered in which the judge held that the
testimony did not warrant the conclusion that, in making the
coupling, the risk was so obvious that an ordinarily careful and
prudent brakeman would not have undertaken it, and therefore, under
the statute, assumption of risk was no defense, but reached the
conclusion that the deceased was guilty of contributory negligence
in failing to exercise care according to the circumstances in
making the coupling in the way he attempted to make it, and in not
adopting a safer way, which was pointed out to him at the time.
Page 220 U. S. 595
Upon the second appeal, the Supreme Court of Pennsylvania
affirmed the judgment of the trial court, saying:
"
Per Curiam: It is the settled law of Pennsylvania that
any negligence of a party injured which contributed to his injury
bars his recovery of damages without regard to the negligence,
either greater or less than his own, of the other party. The
present is a clear case of contributory negligence within this
rule. The evidence is indisputable that the unfortunate decedent
not only attempted to make the coupling in a dangerous way when his
attention was directly called to a safer way, but also did it with
reckless disregard of his personal safety by raising his head,
though twice expressly cautioned at the time as to the danger of so
doing."
222 Pa. 470.
The case is now here upon a petition in error to reverse this
judgment of affirmance. The statute at the time of the injury
complained of took away assumption of risk on the part of the
employee as a defense to an action for injuries received in the
course of the employment. The defense of contributory negligence
was not dealt with by the statute.
*
When the case was here before, we did not find it necessary to
pass upon the question whether contributory negligence on the part
of an injured employee would be a defense to an action under the
law as it then stood, for, upon the record as then presented, the
court was of opinion that to sustain the defense of contributory
negligence would amount to a denial to the plaintiff of all benefit
of the statute which made the assumption of risk no longer a
defense.
While, as was said in the case when here before, assumption
Page 220 U. S. 596
of risk sometimes shades into negligence as commonly understood,
there is, nevertheless, a practical and clear distinction between
the two. In the absence of statute taking away the defense, or such
obvious dangers that no ordinarily prudent person would incur them,
an employee is held to assume the risk of the ordinary dangers of
the occupation into which he is about to enter, and also those
risks and dangers which are known, or are so plainly observable
that the employee may be presumed to know of them, and if he
continues in the master's employ without objection, he takes upon
himself the risk of injury from such defects.
Choctaw, Oklahoma
&c. R. Co. v. McDade, 191 U. S. 64,
91 U. S. 67-68,
and former cases in this Court therein cited.
Contributory negligence, on the other hand, is the omission of
the employee to use those precautions for his own safety which
ordinary prudence requires. (
See in this connection
Narramore v. Cleveland &c. R. Co. v. McDade, 37 C.C.A.
499, 506.)
In the present case, the statute of Congress expressly provides
that the employee shall not be deemed to have assumed the risk of
injury if such is occasioned by his continuing in the employ of the
carrier after the unlawful use of the car or train in the failure
to provide automatic couplers has been brought to his knowledge.
Therefore, when Schlemmer saw that the shovel car was not equipped
with an automatic coupler, he would not, from that knowledge alone,
take upon himself the risk of injury without liability from his
employer.
But there is nothing in the statute absolving the employee from
the duty of using ordinary care to protect himself from injury in
the use of the car with the appliances actually furnished. In other
words, notwithstanding the company failed to comply with the
statute, the employee was not, for that reason, absolved from the
duty of using ordinary care for his own protection under the
circumstances
Page 220 U. S. 597
as they existed. This has been the holding of the courts in
construing statutes enacted to promote the safety of employees.
Krause v. Morgan, 53 Ohio St. 26;
Holum v. Railway
Co., 80 Wis. 299;
Grand v. Railway Co., 83 Mich. 564;
Taylor v. Manufacturing Co.,143 Mass. 470. And such was
the holding of the Court of Appeals of the Eighth Circuit, where
the statute now under consideration was before the court.
Denver & Rio Grande R. Co. v. Arrighi, 129 F. 347.
In the absence of legislation at the time of the injury
complained of taking away the defense of contributory negligence,
it continued to exist, and the federal question presented upon this
record is was the ruling of the state court in denying the right of
recovery upon the ground of contributory negligence, in view of the
circumstances shown, such as to deprive the plaintiff in error of
the benefit of the statute which made assumption of risk a defense
no longer available to the employer? To answer this question, we
shall have to look to the testimony adduced at the trial, all of
which is contained in the record before us. As we have already
said, the testimony shows that the plaintiff's intestate was an
experienced brakeman. A witness, who is uncontradicted in the
record, testified that, just before Schlemmer got out of the
caboose, when he saw the train backing up, he was told: "We had
better shove that up by hand, the same as we did in Bradford. That
is a dangerous coupling to make." (At Bradford, the method of
making the coupling was by means of pushing the caboose up against
the train, instead of backing the train against the caboose.) To
this Schlemmer replied, with emphasis, "Back up." He then proceeded
to make the coupling, with the result stated.
Another witness, the yard conductor, testified without
contradiction, that, just before the cars got together, he walked
up to Schlemmer and told him they had better shove the caboose on
by hand, to which he answered:
Page 220 U. S. 598
"Never mind, I will make this coupling." To which the witness
answered: "Well, you will have to get down." Witness testified that
he called to him twice to get down, the last time not more than a
second, possibly a couple of seconds, before he was injured. This
witness furthermore testified that he had a sufficient crew to push
the caboose up by hand, that there was plenty of force to shove the
caboose up in that way; that that was a great deal safer way to
make the coupling than backing onto the caboose. The testimony
further shows that there was plenty of room under the projection of
the shovel car to operate the drawbar and raise it up. In fact, in
this manner, the coupling was made a few minutes after the
unfortunate occurrence which resulted in the death of the
deceased.
As the record is now presented, there is no proof in the case
that the deceased was ordered to make the coupling in the manner he
did, and there is testimony to the effect that, just before the
injury, the conductor in charge of the train said to the deceased:
"Mr. Schlemmer, you be very careful now, and keep your head down
low, so as not to get mashed in between those cars." He said he
would.
In view of this record, we cannot say that the court, in denying
a recovery to the plaintiff upon the ground of contributory
negligence of the deceased, denied to her any rights secured by the
federal statute. Entirely apart from the question of assumption of
risk, which, under the law, could not be a defense to the
plaintiff's action, as the law then stood, there remained the
defense of contributory negligence.
After an examination of the record as now presented, containing
testimony not adduced at the former trial, we are constrained to
the conclusion that there was ample ground for saying, as both the
trial court and the Supreme Court of the State of Pennsylvania did,
that the decedent met his death because of his unfortunate attempt
to make the coupling in a dangerous way, when a safer way was
at
Page 220 U. S. 599
the time called to his attention. Furthermore, he was injured in
spite of repeated cautions, made at the time, as to the great
danger of being injured if he raised his head in attempting to make
the coupling in the manner which he did.
As we have said, the federal question in the record, and the
only one which gives us jurisdiction, is did the trial and judgment
deprive the plaintiff in error of rights secured by the federal
statute? The views which we have expressed require that the
question be answered in the negative.
The judgment of the Supreme Court of Pennsylvania is
Affirmed.
* By the third section of the Act of April 22, 1908, 35 Stat.
65, c. 149, amending the Employers' Liability Act, no employee
injured or killed is to be held guilty of contributory negligence
in any case where the violation by a common carrier of any statute
enacted for the safety of employees contributed to the injury or
death of such employee.