This Court will not express an opinion on the question of
whether or not the trial court should have found that the injured
employee was engaged in interstate commerce where the error, if
any, did the appellant no harm.
Where the claim of defendant railroad company against whom the
verdict was rendered is that the plaintiff was engaged in
interstate commerce and the case should have been tried under the
federal, instead of the state, statute, and the finding of the jury
was warranted by the evidence, this Court will not reverse if it
does not appear that the defendant's position was worse because the
state, instead of the federal, law governed the case.
Under the Wisconsin law, assumption of risk is merely a case of
contributory negligence, and a finding of the jury that the
plaintiff was not guilty of contributory negligence excludes the
possibility that he assumed the risk.
The facts, which involve the validity of a judgment for damages
for personal injuries, are stated in the opinion.
Page 237 U. S. 400
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action for personal injuries. The plaintiff, Gray,
was a hostler at Antigo, Wisconsin, having various duties as to
receiving and preparing engines for departure, including the
emptying of their ashes into the cinder pit and seeing that the
coals in the pit were wet down. Just before the accident, he had
visited the cinder pit, to see whether the cinder-pit man was doing
his work, and had walked northward a short distance along a path
between the track and a coal shed to a point opposite a rest house
where he would await his next call to duty. He started to cross the
track to the rest house, and was struck by an engine coming from
the south. The defendant offered evidence showing that it was an
interstate road, and that the roundhouse and cinder pit served
indifferently engines that passed the state line and those moving
within the limits of the state, but did not attempt to show how the
engine that struck the plaintiff was engaged. The evidence was
rejected, and the supreme court of the state sustained the
rejection on the ground that it did not appear that the plaintiff's
entire work consisted in the despatching of engines engaged in
interstate commerce, or that he was employed in such commerce at
the moment. It may be assumed that the railway company sufficiently
saved its rights. The plaintiff got a large verdict, the jury
finding specially that the engine that hit the plaintiff went north
of the cinder pit, in violation of the order of the defendant, that
the engineer's negligence was the proximate cause of the injury,
and that the plaintiff was guilty of no negligence that proximately
contributed to the harm.
Page 237 U. S. 401
Of course, the argument for the railway company is that Gray's
employment on the cinder pit was employment upon an instrument of
interstate commerce, and so an employment in interstate commerce as
fully as that of the track repairer in Pedersen v. Del., Lack.
& West. R. Co., 229 U. S. 146
See also St. Louis, San Francisco & Texas Ry. v.
Seale, 229 U. S. 156
that he was on duty at the time when he was struck as much as the
fireman in North Carolina R. Co. v. Zachary, 232 U.
. But we find it unnecessary to express an opinion
upon this argument, since, if there was an error, it seems to have
done the railway company no harm.
There are differences and similarities between the Wisconsin and
federal statutes, but we do not perceive that there is any
difference that made the railway company's position worse if tried
on the hypothesis that the state law governed. It is suggested
that, under the law of the United States, the defendant could have
argued that the plaintiff assumed the risk of this kind of
negligence because he knew that it was a common occurrence for
engines to run north of the cinder pit, not giving the proper
signals. Without considering whether the testimony at all warranted
a finding that Gray assumed the risk of a fellow servant's
negligence, we deem it enough to say that, by the Wisconsin law,
assumption of risk is merely a case of contributory negligence, and
that the finding of the jury that the plaintiff was not guilty of
contributory negligence excludes the possibility that he assumed
the risk. It also makes it unnecessary to consider differences
between state and United States law that would have assumed
importance had the finding upon contributory negligence been the
other way. It is enough to add that the finding of the jury was
warranted by the evidence. The plaintiff in error suggests that the
special verdict required under the state law was improper under the
United States law, but we see no ground for complaint in that. We
need go no
Page 237 U. S. 402
farther as to the rest of the case than to say that no plain
error appears. Yazoo & Miss. Val. R. Co. v. Wright,
235 U. S. 376
235 U. S.