Where plaintiff in error seeks to review under § 237, Judicial
Code, the judgment of the state court in a case arising under the
Employers' Liability Act, this Court may not consider nonfederal
questions
Page 236 U. S. 669
which do not in their essence involve the existence of right to
recover under the federal statute.
Existence of power to review the judgment of the state court
under § 237, Judicial Code, rests not merely upon form, but upon
substance and cannot arise from the mere assertion of a formal
right which is so wanting in foundation and unsubstantial as to be
devoid of merit and therefore frivolous.
While in this case the assignment of error on its face is not
frivolous and gives jurisdiction to review, the proposition that
the jury was misled by the instructions of the court in regard to
the doctrine of assumption of risk is unfounded.
If the proof is sufficient to justify the submission of the case
to the jury on the question of assumption of risk, there is no
reversible error in so doing and in not instructing a verdict for
defendant, and as in this case two courts below have concurred in
finding that there was sufficient proof, this Court finds there was
no error.
83 S.E. 633 affirmed.
The facts, which involve the jurisdiction of this Court of writs
of error to review a judgment of the state court under § 237,
Judicial Code, are stated in the opinion.
Page 236 U. S. 670
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
Is there jurisdiction to review the action of the court below in
affirming the judgment of the trial court, which was entered on the
verdict of a jury, and if so, was error below committed, are the
questions for decision (83 S.E. 633).
The suit was brought to recover damages alleged to have been
suffered by the death of Lewis H. Padgett, a railroad engineer in
the service of the defendant company, the plaintiff in error,
caused by his having fallen during the
Page 236 U. S. 671
early morning hours into a drop pit in a locomotive roundhouse
belonging to the company. The negligence charged was not only the
failure to cover the pit, but also to properly light the
roundhouse. If our jurisdiction attaches, it can only be because
the right to recover was based upon the act of Congress commonly
known as the Employers' Liability Act, it having been averred that
the deceased was an employee of the company actually engaged in
interstate commerce. But, as pointed out in
St. Louis &
Iron Mountain Ry. v. McWhirter, 229 U.
S. 265,
229 U. S. 275,
although the cause of action relied upon was based upon the federal
statute, nevertheless,
"as it comes here from a state court, our power to review is
controlled by Rev.Stat. § 709, § 237, Judicial Code, and we may
therefore not consider merely incidental questions not federal in
character -- that is, which do not in their essence involve the
existence of the right in the plaintiff to recover under the
federal statute to which his recourse by the pleadings was
exclusively confined, or the converse -- that is to say, the right
of the defendant to be shielded from responsibility under that
statute because, when properly applied, no liability on his part
from the statute would result.
Seaboard Air Line Ry. v.
Duvall, 225 U. S. 477;
St. Louis, I.
M. & S. Ry. v. Taylor, 210 U. S. 281."
The existence of jurisdiction to review under the principles
just stated depends not merely upon form, but upon substance --
that is, in this class of cases, as in others, the general rule
controls that power to review cannot arise from the mere assertion
of a formal right when such asserted right is so wanting in
foundation and unsubstantial as to be devoid of all merit and
frivolous. There is no doubt that the assignments of error, on
their face, embrace federal questions which give jurisdiction to
review. We therefore exercise jurisdiction and come to consider the
questions on their merits, incidentally pointing out in doing so
the reasons why the questions are not of such a frivolous character
as not to afford a basis for the
Page 236 U. S. 672
authority to examine and dispose of them. The trial court gave
to the jury every instruction concerning the meaning and
application of the act of Congress asked by the company, and
therefore there is no ground whatever for saying that the view of
the statute relied upon by the company was not given to the jury.
But, despite this fact, two of the nine assignments of error insist
that the jury was misled concerning the doctrine of assumption of
the risk applicable under the statute because of two statements as
to the law on the subject, made by the court to the jury over the
exception of the defendant, which are asserted to have been
confusing because possibly conflicting with each other. But, while
the proposition has sufficient strength to exclude the conception
that the contention is frivolous, we are nevertheless of opinion
that the court below was right in holding that, even upon the
concession, for argument's sake, that the two charges referred to,
if they had stood alone, might have tended to give to the jury a
mistaken conception of the law of assumption of the risk,
nevertheless there was no reason for saying that they could have
produced such a result in view of the express instruction
concerning the doctrine of assumption of the risk as applied to the
case in hand which was given by the court to the jury in the very
words asked by the company, and which was so explicit as to dispel
the possibility of misconception. Whether the instructions could
have produced misconception in the minds of the jury is not to be
ascertained by merely considering isolated statements, but by
taking into view all the instructions given and the tendencies of
the proof in the case to which they could possibly be applied. And
as from both of these points of view we are of opinion that there
is no room whatever for the conclusion that any confusion or
misconception as to the doctrine of assumption of the risk could
have arisen from the particular statements which are relied upon,
the proposition based upon them is without merit.
Page 236 U. S. 673
While this disposes of the two assignments which are directly
and specifically concerned with the interpretation of the statute,
nevertheless the remaining seven also raise questions of law under
the statute, since they all, in one form or another, rest upon the
contention that error was committed by the trial court in not
taking the case from the jury and instructing a verdict for the
defendant upon the assumption that there was no evidence sufficient
to justify the submission of the case to the jury for its
consideration.
Creswill v. Knights of Pythias,
225 U. S. 246,
225 U. S. 261;
Southern Pacific Co. v. Schuyler, 227 U.
S. 601,
227 U. S. 611;
St. Louis & Iron Mountain Ry. v. McWhirter,
229 U. S. 276,
229 U. S. 277;
Miedreich v. Lauenstein, 232 U. S. 236,
232 U. S.
243-244;
Carlson v. Washington, 234 U.
S. 103,
234 U. S. 106.
Considering the case from this point of view, we think the
contention cannot be said to be frivolous, since its solution is by
no means free from difficulty -- a situation which was manifested
by the division of opinion which arose on the subject in the court
below and by the further fact that some members of this Court now
consider the proposition as affording adequate ground for reversal.
But, although the question is not free from complexity, a majority
of the Court is of opinion that the proof was sufficient to justify
the submission of the case to the jury, and therefore the
proposition affords no basis for holding that reversible error was
committed because that course was pursued. As the considerations by
which this conclusion is sustained depend solely upon an analysis
of the evidence, and as a statement upon the subject therefore
would amount only to giving a summary of the proof in this case and
its tendencies involving no matter of doctrinal importance, for
this reason and additionally in view of the fact that both the
courts below have concurred in holding that there was no sufficient
ground to take the case from the jury, we think it is unnecessary
to state the proof and its tendencies, and we therefore content
ourselves with saying
Page 236 U. S. 674
that the contention that error was committed in not taking the
case from the jury is found, after an examination of the record, to
be without merit.
In the argument, a contention was urged based upon some
expression made use of by the trial court in refusing the request
to take the case from the jury. Although we have considered the
proposition and find it totally devoid of merit, we do not stop to
further state the contention or the reasons which control us
concerning it, as we think it is manifestly an afterthought, as it
was virtually not raised in the trial court and was not included in
the assignments of error made for the purpose of review by the
court below, nor in those made in this Court on the suing out of
the writ of error.
Affirmed.