Where there is no contention as to the meaning of the Employers'
Liability Act, this Court, in a case where the judgment of the
district court has been affirmed by the circuit court of appeals,
need only determine whether plain error was committed in relation
to the principle of general law involved.
In this case, the only error pressed being that the court below
held that there was no assumption of risk by the injured party, and
as it is impossible to deduce any assumption from the facts stated,
the judgment is affirmed.
207 F. 281 affirmed.
The facts, which involve the validity of a judgment for damages
obtained by the administratrix of an employee of a railroad company
under the Employers' Liability Act, are stated in the opinion.
Page 235 U. S. 378
Memorandum opinion by direction of the Court, by MR. CHIEF
JUSTICE WHITE:
While this second appeal rests on the Employers' Liability Act,
there is no contention as to its meaning (207 F. 281); hence we
need only determine whether plain error was committed in relation
to the principles of general law involved. [
Footnote 1]
Error in holding that the facts afforded no ground for the
application of the doctrine of assumption of the risk is the sole
contention pressed in argument. A freight train
Page 235 U. S. 379
of which the deceased was engineer, proceeding southward on a
lead track, approached or was traversing a railroad yard. Ahead --
the distance not being specifically defined -- on a yard track
connecting with, and to the left of, the lead track, there stood
some loaded coal cars which, while visible to the engineer from the
right side of the engine, became more and more shut off from his
view as the train advanced. The engineer asked the fireman, who was
on the left side of the engine, and therefore in full view of the
cars, whether they were clear of the lead track, and was answered
that they were. There is a dispute as to whether a head brakeman
was riding in the cab, and whether subsequently, if there, he
called the engineer's attention to the fact that the coal cars were
not clear. But there is no dispute that the engineer again asked
the fireman, who answered that the cars were not clear, and jumped
from the locomotive. The engineer, having shut off his power,
stepped to the left side, where, from the collision which
immediately resulted, he received the injuries from which he
subsequently died.
Whatever may be the difficulty of distinguishing in many cases
between the application of the doctrine of assumption of risk and
the principles of contributory negligence, that there is no such
difficulty here is apparent, since the facts as stated absolutely
preclude all inference that the engineer knew, or, from the facts
shown, must be presumed to have known, that the coal cars were
protruding over the track on which he was moving, and deliberately
elected to assume the risk of collision and great danger which
would be the inevitable result of his continuing the forward
movement of his train. [
Footnote
2]
Page 235 U. S. 380
The impossibility of deducing assumption of the risk from the
facts stated is cogently demonstrated by the arguments advanced to
establish the risk was assumed. Thus, it is urged that, as in a
railroad yard there was danger to arise from the protrusion of cars
negligently placed by employees of the company, a danger which the
engineer must have known might arise, therefore he assumed the risk
of such danger. And again, the argument is that, even although the
engineer did not know of the protruding cars, and therefore did not
consciously incur the great risk to result from the collision, yet,
as by proper precaution he could have discovered the fact that the
cars were protruding, he must be considered to have assumed the
risk which resulted from his want of care. But both these arguments
have no relation to the doctrine of assumption of the risk, and
only call for the application of the principle of contributory
negligence or of fellow servant.
Affirmed.
[
Footnote 1]
Chicago Junction Ry. v. King, 222 U.
S. 222;
Seaboard Air Line v. Moore,
228 U. S. 433;
Chicago, R.I. & Pac. Ry. v. Brown, 229 U.
S. 317;
Southern Railway v. Gadd, 233
U. S. 577.
[
Footnote 2]
Union Pacific Ry. v. O'Brien, 161 U.
S. 451;
Texas & Pacific Railway v.
Archibald, 170 U. S. 665;
Texas & Pacific Railway v. Behymer, 189 U.
S. 468;
Choctaw, Oklahoma &c. R. Co. v.
McDade, 191 U. S. 64;
Schlemmer v. Buffalo, Rochester &c. R. Co.,
205 U. S. 1,
205 U. S. 12,
s.c.
220 U. S. 220 U.S.
590;
Seaboard Air Line v. Horton, 233 U.
S. 492,
233 U. S.
503-504.