A writ of error in terms returnable within thirty days from the
date thereof substantially complies with the return day provision
in clause 5 of Rule 8 of this Court.
Where the state court of last resort sustained the trial court
in overruling contentions made by the plaintiff in error, asserting
a construction of the Employers' Liability Act which, if acceded
to, would have resulted in a verdict in his favor, this Court has
jurisdiction under § 237, Judicial Code.
Since Congress, by the Employers' Liability Act of 1908, took
control of the liability of carriers engaged in interstate
transportation by rail to employees injured while engaged in
interstate commerce, all state laws upon the subject have been
superseded.
Second Employers' Liability Cases,
223 U. S. 1,
223 U. S. 55.
Whatever may have been the common law rule theretofore,
Congress, in enacting the Employers' Liability Act, intended to,
and did, base the action on negligence only, and excluded
responsibility of the carrier to its employees for defects and
insufficiencies not attributable to negligence.
The provision diminishing liability of the carrier in case of
contributory negligence on the part of the injured employee except
where there has been a violation by the carrier of any statute
enacted for the safety of employees relates to federal statutes
only, and not to state statutes.
The Employers' Liability Act having expressly eliminated the
defense of assumption of risk in certain specified cases, the
intent of Congress is plain that in all other cases such assumption
shall have its former effect as a bar to an action by the injured
employee.
When the employee knows of a defect in the appliances used by
him and appreciates the resulting danger and continues in the
employment without objection, or without obtaining from the
employer an assurance of reparation, he assumes the risk even
though it may arise from the employer's breach of duty.
Where there is promise of reparation by the employer, the
continuing on duty by the employee does not amount to assumption of
risk unless the danger be so imminent that no ordinarily prudent
man would rely on such promise.
Page 233 U. S. 493
Under the Employers' Liability Act, a defect in an appliance
which is not covered by any of the Federal Safety Acts does not
leave the employer absolutely responsible for the defect, but the
common law rule as to assumption of risk applies, and so
held as to a defect in a water gauge of which the engineer
had knowledge before the accident resulting therefrom.
162 N.C. 77 reversed.
The facts, which involve the construction of the Federal
Employers' Liability Acts of 1908 and 1910 and the effect of those
statutes on state laws in regard to liability of employers, are
stated in the opinion.
Page 233 U. S. 495
MR. JUSTICE PITNEY delivered the opinion of the Court.
Horton sued the Seaboard Air Line Railway in the Superior Court
of Wake County, North Carolina, to recover damages for personal
injuries sustained by him while in defendant's employ as a
locomotive engineer. The action was brought under the Federal
Employers' Liability Act of April 22, 1908, 35 Stat. 65, c. 149, as
amended April 5, 1910, 36 Stat. 291, c. 143. In the complaint it
was sufficiently averred that defendant was a corporation operating
a line of railway as a common carrier in interstate commerce, and
that plaintiff, at the time he was injured, was employed by
defendant in such commerce. These facts were not in issue at the
trial.
As to the circumstances of the occurrence of the injury,
plaintiff's evidence tended to show that, on July 27, 1910,
defendant's locomotive engine No. 752 was placed in his charge;
that it was equipped with a Buckner water gauge, a device attached
to the boiler head for the purpose of showing the level of the
water in the boiler, and consisting of a brass frame or case
enclosing a thin glass tube which communicated with the boiler
above and below in such manner that the tube received water and
steam direct from the boiler and under the full boiler pressure. In
order to shield the engineer from injury in case of the bursting of
the tube, a piece of ordinary glass, 2 or 3 inches wide, 8 or 9
inches long, and about half an inch thick, known as a guard glass,
should have been provided, this being a part of the regular
equipment of the Buckner water gauge. There were slots for
receiving the guard glass and holding it in position in front of
the water tube. At each end of the tube, valves were provided for
the purpose of disconnecting
Page 233 U. S. 496
it from the boiler. As an alternative, but probably less
convenient, method of determining the level of the water in the
boiler, ordinary gauge cocks were provided.
Plaintiff was an experienced locomotive engineer, and, according
to his own testimony, was fully aware of the function of the guard
glass and of its importance to his safety. He testified that, when
he took the engine out on his first trip on July 27th, he observed
that the guard glass was missing; that, on his return upon the
following day he reported this to defendant's roundhouse foreman,
to whom reports of such defects were properly made, and asked him
for a guard glass; that the foreman stated there were none in stock
at that place, and it would be necessary to send to a distance to
get one; that he would do this, and that plaintiff should meanwhile
run the engine without one, and that, having ineffectually
endeavored to get a guard glass from another source, plaintiff
proceeded to drive the engine with the use of the unguarded water
gauge until August 4th, when the glass exploded and flying
fragments struck him in the face, causing the injuries upon which
his claim for damages was based.
Defendant's evidence tended to show that, when the engine was
placed in plaintiff's charge on July 27th, the water glass was in
good condition, with a guard glass in place; that the gauge cocks
were likewise in good working order; that it was the duty of a
locomotive engineer to inspect his engine and know that it was in
proper order before taking it out, and if not in proper order, to
make a written report to the roundhouse foreman, specifying the
defects; that, if anything should happen to the water glass, it was
the engineer's duty to close the valves so as to exclude the steam
pressure from it, and run the engine with the gauge cocks, and that
these were sufficient for the purpose, and that plaintiff made
repeated reports in writing between July 27 and the time of his
injury, mentioning other things needed about his engine, but making
no mention of the
Page 233 U. S. 497
water gauge or the guard glass. The fireman testified
specifically that, when plaintiff took charge of the engine on the
morning of the 27th, the water glass had the shield or guard in
front of it, but that it was smoky, so that one could not see
through it; that he, the fireman, in the presence of plaintiff,
removed the guard glass in order to clean it, and that, in
plaintiff's presence, it became broken. The roundhouse foreman
specifically denied plaintiff's testimony about the complaint and
the promise of reparation.
Under instructions presently to be noticed, the case was
submitted to the jury upon three issues, to which responses were
made as follows:
(1) Was plaintiff injured by defendant's negligence? Answer,
Yes.
(2) If so, did plaintiff assume the risk of injury? Answer,
No.
(3) Did plaintiff by his own negligence contribute to his
injury? Answer, Yes.
The jury also assessed substantial damages, for which judgment
was rendered by the trial court, and upon appeal, the supreme court
affirmed the judgment, 162 N.C. 424. The case comes here, under §
237, Judicial Code, upon questions arising out of instructions
given and refused to be given to the jury as to the nature of the
duty of the employer and the rules respecting assumption of risk
and contributory negligence under the Federal Employers' Liability
Act.
There is a motion to dismiss upon the ground that no return day
is specified in the writ of error or citation.
Carroll v.
Dorsey (1857), 20 How. 204,
61 U. S. 207,
and
Sea v. Connecticut Mutual Life Ins. Co. (1880), 154
U.S. 659, are relied upon. These decisions were based upon § 22 of
the Judiciary Act of September 24, 1789, 1 Stat. 84, c. 20, which
was held to require a certain return day to be specified in the
writ of error. Accordingly, General Rule
Page 233 U. S. 498
33, promulgated December Terms 1867 (6 Wall. vi), afterwards
found as Clause 5 of Rule 8 of the revised rules promulgated
January 7, 1884 (108 U.S. 577), required that the writ of error and
citation should be returnable on the first day of the term in cases
where final judgment was rendered more than thirty days before that
day, and on the third Monday of the term in cases where judgment
was rendered less than thirty days before the first day. Blatchf,
U.S.Ct.Rules 77. But, under the authority conferred by Rev.Stat. §
917, the Court, on January 26, 1891, amended Clause 5 of Rule 8 so
as to read:
"All appeals, writs of error, and citations must be made
returnable not exceeding thirty days from the day of signing the
citation, whether the return day fall in vacation or in term time,
and be served before the return day,"
137 U.S. 710. And in the present rule as promulgated December
22, 1911 (222 U.S. Appendix, p. 14), the same language is retained,
with an exception extending the time to sixty days in writs of
error and appeals from the western states, and Alaska, Hawaii, and
Porto Rico, and to one hundred twenty days as to the Philippine
Islands. An extension of the time in favor of the more distant
states and territories was first introduced as Clause 3 of original
Rule 63, promulgated at December Term, 1853 (16 How. ix), and has
been continued, with amendments, until the present time (21 How.
viii.; 2 Wall. viii.; 108 U.S. 578). It has, however, no bearing
upon the form of the writ or citation, aside from the limit of time
that may be allowed between date and return.
The present writ of error and citation were dated the fourth day
of August, 1913, and in terms were returnable "within thirty days
from the date hereof." This form has been usually employed, with
the approval of the Court, since the amendment of the rule made in
1891, as mentioned. It is a substantial compliance with the
present
Page 233 U. S. 499
rule, and tends to avoid errors that otherwise might be made in
inserting a day certain as a return day.
This motion must therefore be denied.
A second motion to dismiss, based upon grounds still more
technical, and which need not be particularly stated, will likewise
be denied.
There is a further motion to dismiss for want of jurisdiction,
upon the ground that no right, privilege, or immunity under the
Employers' Liability Act was especially set up or claimed in the
state court of last resort and by that court denied. But since that
court sustained the trial court in overruling certain contentions
made by plaintiff in error asserting a construction of the act
which, if acceded to, would presumably have produced a verdict in
its favor, and consequent immunity from the action, this motion
must be denied upon the authority of
St. Louis, Iron Mountain
& Southern Ry. v. McWhirter, 229 U.
S. 265.
Coming now to the merits, we need consider only certain
assignments of error that are based upon exceptions to the action
of the trial judge in giving and refusing to give instructions
relating to the issues of defendant's negligence, the assumption of
risk, and contributory negligence.
At the outset, we observe that the judge evidently
misapprehended the effect of the federal act upon state
legislation. Thus, the jury was told that plaintiff had brought the
action under the federal statute;
"And where Congress enacts a law within the limits of its power,
that law should be enforced uniformly throughout the entire United
States. If it is in conflict with the state law, the state law is
superseded. But where there is no conflict expressed by the statute
of the United States, then the rule of the state prevails."
This, of course, in the absence of a specific statement of the
applicable rule of the state law, might be treated as academic. But
the theory
Page 233 U. S. 500
was carried into the specific instructions, to the extent that,
upon the questions of the employer's duty and the assumption of
risk by the employee, the charge was modeled rather upon the North
Carolina statute than upon the act of Congress. By § 2646, Nor.Car.
Revisal of 1905,
"Any servant or employee of any railroad company operating in
this state who shall suffer injury to his person, or the personal
representative of any such servant or employee who shall have
suffered death in the course of his services or employment with
such company by the negligence, carelessness, or incompetence of
any other servant, employee, or agent of the company, or by any
defect in the machinery, ways, or appliances of the company, shall
be entitled to maintain an action against such company. Any
contract or agreement, expressed or implied, made by any employee
of such company to waive the benefit of this section shall be null
and void."
Upon the issue of defendant's negligence, the trial court
charged the jury as follows:
"It is the duty of the defendant to provide a reasonably safe
place for the plaintiff to work, and to furnish him with reasonably
safe appliances with which to do his work."
And in various other forms, the notion was expressed that the
duty of defendant was absolute with respect to the safety of the
place of work and of the appliances for the work. Thus:
"If you find from the evidence that it [the locomotive engine]
was turned over to him without the guard, and if you further find
from the evidence that the guard was a proper safety provision for
the use of that gauge, and that it was unsafe without it, then the
defendant did not furnish him a safe place and a safe appliance to
do his work, and if it remained in that condition it was continuing
negligence on the part of the defendant, and if he was injured in
consequence thereof, if you so find by the greater weight of the
evidence, you should answer the first issue, 'Yes.' "
Page 233 U. S. 501
In these instructions, the trial judge evidently adopted the
same measure of responsibility respecting the character and safe
condition of the place of work, and the appliances for the doing of
the work, that is prescribed by the local statute. But it is
settled that, since Congress, by the Act of 1908, took possession
of the field of the employer's liability to employees in interstate
transportation by rail, all state laws upon the subject are
superseded.
Second Employers' Liability Cases,
223 U. S. 1,
223 U. S. 55.
The act is quoted in full in that case at p.
223 U. S. 6. By
its first section, a right of action is conferred (under conditions
specified) for injury or death of the employee
"resulting in whole or in part from the negligence of any of the
officers, agents, or employees of such carrier, or by reason of any
defect or insufficiency, due to its negligence, in its cars,
engines, appliances, machinery, track, roadbed, works, boats,
wharves, or other equipment."
This clause has two branches -- the one covering the negligence
of any of the officers, agents, or employees of the carrier, which
has the effect of abolishing in this class of cases the common law
rule that exempted the employer from responsibility for the
negligence of a fellow employee of the plaintiff, and the other
relating to defects and insufficiencies in the cars, engines,
appliances, etc. But plainly, with respect to the latter as well as
the former ground of liability, it was the intention of Congress to
base the action upon negligence only, and to exclude responsibility
of the carrier to its employees for defects and insufficiencies not
attributable to negligence. The common law rule is that an employer
is not a guarantor of the safety of the place of work or of the
machinery and appliances of the work; the extent of its duty to its
employees is to see that ordinary care and prudence are exercised,
to the end that the place in which the work is to be performed and
the tools and appliances of the work
Page 233 U. S. 502
may be safe for the workmen.
Hough v. Railway Co.,
100 U. S. 213,
100 U. S. 217;
Washington & Georgetown Railroad Co. v. McDade,
135 U. S. 554,
135 U. S. 570;
Choctaw, Oklahoma & Gulf R. Co. v. McDade,
191 U. S. 64,
191 U. S. 67. To
hold that, under the statute, the railroad company is liable for
the injury or death of an employee resulting from any defect or
insufficiency in its cars, engines, appliances, etc., however
caused, is to take from the act the words "due to its negligence."
The plain effect of these words is to condition the liability upon
negligence, and had there been doubt before as to the common law
rule, certainly the act now limits the responsibility of the
company as indicated. The instructions above quoted imposed upon
the employer an absolute responsibility for the safe condition of
the appliances of the work, instead of limiting the responsibility
to the exercise of reasonable care. In effect, the jury was
instructed that the absence of the guard glass was conclusive
evidence of defendant's negligence. In this there was error.
The questions more particularly discussed, however, and upon
which the decision seems to have turned in the Supreme Court of
North Carolina, pertain to the issues of assumption of risk and
contributory negligence. By § 3 of the Act of 1908, it is declared
that
"the fact that the employee may have been guilty of contributory
negligence shall not bar a recovery, but the damages shall be
diminished by the jury in proportion to the amount of negligence
attributable to such employee:
Provided, that no such
employee who may be injured or killed shall be held to have been
guilty of contributory negligence in any case where the violation
by such common carrier of any statute enacted for the safety of
employees contributed to the injury or death of such employee."
And by § 4,
"Such employee shall not be held to have assumed the risks of
his employment in any case where the violation by such common
carrier of any statute enacted for
Page 233 U. S. 503
the safety of employees contributed to the injury or death of
such employee."
By the phrase "any statute enacted for the safety of employees,"
Congress evidently intended federal statutes, such as the Safety
Appliance Acts, March 2, 1893, 27 Stat. 531, c. 196; March 2, 1903,
32 Stat. 943, c. 976; April 14, 1910, 36 Stat. 298, c. 160;
February 17, 1911 36 Stat. 913, c. 103, and the Hours of Service
Act, February 4, 1907, 34 Stat. 1415, c. 2939. For it is not to be
conceived that, in enacting a general law for establishing and
enforcing the responsibility of common carriers by railroad to
their employees in interstate commerce, Congress intended to permit
the legislatures of the several states to determine the effect of
contributory negligence and assumption of risk by enacting statutes
for the safety of employees, since this would in effect relegate to
state control two of the essential factors that determine the
responsibility of the employer.
It seems to us that § 4, in eliminating the defense of
assumption of risk in the cases indicated, quite plainly evidences
the legislative intent that, in all other cases, such assumption
shall have its former effect as a complete bar to the action. And,
taking §§ 3 and 4 together, there is no doubt that Congress
recognized the distinction between contributory negligence and
assumption of risk, for, while it is declared that neither of these
shall avail the carrier in cases where the violation of a statute
has contributed to the injury or death of the employee, there is,
with respect to cases not in this category, a limitation upon the
effect that is to be given to contributory negligence, while no
corresponding limitation is imposed upon the defense of assumption
of risk -- perhaps none was deemed feasible.
The distinction, although simple, is sometimes overlooked.
Contributory negligence involves the notion of some fault or breach
of duty on the part of the employee, and since it is ordinarily his
duty to take some precaution
Page 233 U. S. 504
for his own safety when engaged in a hazardous occupation,
contributory negligence is sometimes defined as a failure to use
such care for his safety as ordinarily prudent employees in similar
circumstances would use. On the other hand, the assumption of risk,
even though the risk be obvious, may be free from any suggestion of
fault or negligence on the part of the employee. The risks may be
present notwithstanding the exercise of all reasonable care on his
part. Some employments are necessarily fraught with danger to the
workman -- danger that must be and is confronted in the line of his
duty. Such dangers as are normally and necessarily incident to the
occupation are presumably taken into the account in fixing the rate
of wages. And a workman of mature years is taken to assume risks of
this sort whether he is actually aware of them or not. But risks of
another sort, not naturally incident to the occupation, may arise
out of the failure of the employer to exercise due care with
respect to providing a safe place of work and suitable and safe
appliances for the work. These employee is not treated as assuming
until he becomes aware of the defect or disrepair and of the risk
arising from it, unless defect and risk alike are so obvious that
an ordinarily prudent person under the circumstances would have
observed and appreciated them. These distinctions have been
recognized and applied in numerous decisions of this Court.
Choctaw, Oklahoma & Gulf R. Co. v. McDade,
191 U. S. 64,
191 U. S. 68;
Schlemmer v. Buffalo, Rochester & Pittsburgh Ry. Co.,
220 U. S. 590,
220 U. S. 596;
Tex. & Pac. Ry. Co. v. Harvey, 228 U.
S. 319,
228 U. S. 321;
Gila Valley Ry. Co. v. Hall, 232 U. S.
94,
232 U. S. 102,
and cases cited.
When the employee does know of the defect, and appreciates the
risk that is attributable to it, then if he continues in the
employment without objection, or without obtaining from the
employer or his representative an assurance that the defect will be
remedied, the employee
Page 233 U. S. 505
assumes the risk, even though it arise out of the master's
breach of duty. If, however, there be a promise of reparation, then
during such time as may be reasonably required for its performance,
or until the particular time specified for its performance, the
employee, relying upon the promise, does not assume the risk,
unless, at least, the danger be so imminent that no ordinarily
prudent man under the circumstances would rely upon such promise.
Hough v. Railway Co., 100 U. S. 213,
100 U. S. 224;
Southwestern Brewery v. Schmidt, 226 U.
S. 162,
226 U. S. 168.
This branch of the law of master and servant seems to be traceable
to
Holmes v. Clarke, 6 Hurl. & Norm. 349;
Clarke
v. Holmes, 7 Hurl. & Norm. 937.
In the light of these principles the rulings of the trial court
in the case at bar must be considered.
Defendant specifically requested an instruction that plaintiff's
right to recover damages was to be determined by the provisions of
the federal act, and that,
"if you find by a preponderance of evidence that the water glass
on the engine on which plaintiff was employed was not provided with
a guard glass, and the condition of the glass was open and obvious
and was fully known to plaintiff, and he continued to use such
water glass with such knowledge and without objection, and that he
knew the risk incident thereto, then the court charges you that the
plaintiff voluntarily assumed the risk incident to such use, and
you will answer the second issue 'Yes.'"
The court gave this instruction as applicable to the issue of
contributory negligence, and instead of the words, "then the court
charges you that the plaintiff voluntarily assumed the risk
incident to such use, and you will answer the second issue
Yes,'" used the words, "then the court charges you that the
plaintiff was guilty of contributory negligence, and you will
answer the third issue `Yes.'" To the refusal to give the
instruction as requested, and the modification of it, defendant
excepted.
Page 233 U. S.
506
The trial court evidently deemed, as did the state supreme
court, that the topic of assumption of risk, with reference to the
circumstances of the case, was sufficiently and properly covered by
an instruction actually given as follows: after stating in general
terms that "a man assumes the risk when he takes employment,
incident to the class of work which he is to perform," but that "he
does not assume the risk incident to the negligence of his employer
in providing machinery and appliances with which he has to work,"
the court proceeded as follows:
"On the other hand, the employer has the right to assume that
his employee will go about his work in a reasonably safe way, and
give due regard to the machinery and appliances which are in his
hands and under his control, and if you should find from the
evidence by its greater weight (because the burden in this instance
is on the defendant), that the plaintiff knew of the absence of the
guard or shield to the water gauge and failed to give notice to the
defendant or to the agent whose duty it was to furnish the water
gauge and appliance, and he continued to use it without giving that
notice,
it being furnished to him in a safe condition,
then he assumed the risk incident to his work in the engine with
the glass water gauge in that condition, although he might have
handled his engine in every other respect with perfect care.
[Italics ours.]"
It will be observed that, by this instruction, the application
of the rule of assumption of risk was conditioned upon the jury's
finding that the water gauge, when furnished to plaintiff, was in a
safe condition. Here again, the court appears to have followed the
local statute, rather than the act of Congress, for § 2646,
Nor.Car. Revisal of 1905, already quoted, has been held by the
state supreme court to abolish assumption of risk as a bar to an
action by a railroad employee for an injury attributable to
defective appliances furnished by the employer.
Coley v.
Railroad
Page 233 U. S. 507
Co., 128 N.C. 534. The trial court, while recognizing
that the act of Congress applied so far as its terms extended, and
that, by its terms, the employee is not to be held to have assumed
the risk in any case where the violation by the carrier of a
statute enacted for the safety of employees contributed to the
injury, at the same time held that, since no statute had been
enacted covering such an appliance as the glass water gauge, the
rights of plaintiff were such as he would have under the state law.
An instruction to the jury to this effect preceded the instructions
we have just quoted.
It is true that such an appliance as the water gauge and guard
glass in question is not covered by the provisions of the Safety
Appliance Act, or any other law passed by Congress for the safety
of employees in force at the time this action arose. But the
necessary result of this is not to leave the employer responsible
for the consequences of any defect in such an appliance, excluding
the common law rule as to assumption of risk, but to leave the
matter in this respect open to the ordinary application of the
common law rule. The adoption of the opposite view would, in
effect, leave the several state laws, and not the act of Congress,
to control the subject matter.
By the instruction as given, the application of the rule of
assumed risk was confined to the single hypothesis that the jury
should find the guard glass was in position when the engine was
delivered to plaintiff on the morning of July 27th. This, as
already pointed out, was one of the questions in dispute, plaintiff
having testified that the guard glass was missing at that time,
while his fireman testified (and in this was corroborated by
circumstantial evidence) that it was in place at that time, and was
subsequently broken. But, by the common law, with respect to the
assumption by the employee of the risk of injuries attributable to
defects due to the employer's negligence, when known and
appreciated by the employee
Page 233 U. S. 508
and not made the subject of objection or complaint by him, it is
quite immaterial whether the defect existed when the appliance was
first placed in his charge or subsequently arose. Hence, if the
guard glass was missing when plaintiff first took the engine, as he
testified, and he, knowing of its absence and the consequent risk
to himself, continued to use the water gauge without giving notice
of the defect to the defendant or its representative, he assumed
the risk.
Defendant was entitled to have the requested instruction given
respecting assumption of risk, and as the charge actually given did
not cover the same ground, there was error.
Its harmful effect is conspicuously evident when we note that
the jury, while finding that plaintiff did not assume the risk, at
the same time found that he did, by his own negligence, contribute
to his injury. Presumably, if instructed in the manner requested by
defendant, the jury would have found that the risk was assumed, and
this would have entitled defendant to a judgment in its favor,
instead of a mere mitigation of the damages, which was the
consequence of a finding of contributory negligence.
The judgment of the Supreme Court of North Carolina must be
reversed, and the cause remanded for further proceedings not
inconsistent with this opinion.
Reversed.