When a state court applies the Federal Employers' Liability Act
to an action governed by the state law, the error is not ground for
reversing the judgment upon the complaint of a party who did not
oppose, but invoked and relied upon, the application of the federal
statute.
In such circumstances, however, this Court will not pass upon
questions concerning negligence and assumption of risk if the facts
touching the plaintiff's employment are stated and agreed, and fail
to make a case within the federal act.
The injury occurred while plaintiff was repairing an engine.
The
Page 242 U. S. 354
engine had been used in interstate commerce before the injury
and was so used afterwards, but there was nothing to show that it
was permanently or specially devoted to such commerce, or assigned
to it at the time.
Held, not a case within the Federal
Employers' Liability Act.
131 Minn. 181;
id., 496, affirmed.
The case is stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action for personal injuries suffered by the
plaintiff, the defendant in error, at Marshalltown, Iowa, on
October 21, 1912. The decisions below will be found in 126 Minn.
260. The declaration alleged that, at the time, the plaintiff was
employed by the defendant in interstate commerce, although it went
on to set forth laws of the State of Iowa concerning the liability
of railroads and contributory negligence. It alleged that the
injury was caused by the negligence of the defendant in failing to
furnish a reasonably safe instrument for the work that the
plaintiff was set to do. The answer denied, among other things,
that the plaintiff was employed in interstate commerce, and set up
the plaintiff's negligence and assumption of the risk. In the
course of the trial, the facts touching the employment having been
agreed, the counsel for the defendant intimated that he might want
to take the question whether the commerce was interstate to this
Court, but said no more about it, and later moved to dismiss the
suit upon
Page 242 U. S. 355
the ground, among others, that the plaintiff assumed the risk,
adverting to a decision that that defense was open under the
federal act. Later still, the presiding judge, in his charge,
without objection, told the jury that the action was tried under
the law of the United States, and, in the assignment of errors to
the supreme court of the state, one error assigned was that the
jury was instructed that they might find a less than unanimous
verdict in a suit founded upon the Federal Employers' Liability Act
-- a proposition disposed of since the trial by a decision of this
court.
Minneapolis & St. Louis R. Co. v. Bombolis,
241 U. S. 211.
It is true that error is assigned because the court affirmed its
opinion rendered after a former trial. But, in the assignment of
errors to the state court, no such error is alleged, and, beyond
judicial recitals that the evidence, with some exceptions, was the
same at both trials and quotations from the decision as to
negligence, the record shows nothing but a casual statement of
counsel as to what was done or ruled before. In short, at the
trial, the defendant in no way saved its rights to deny that the
parties were engaged in interstate commerce at the time of the
accident, or to object to the application of the federal statute.
On the contrary, without qualification, it invoked and relied upon
that statute and the rights that, because of that statute, it
supposed itself to possess. There is an ambiguous assignment of
error that the supreme court of the state erred in holding as
matter of law that the plaintiff was engaged in interstate
commerce, and in holding that the question of the plaintiff's
assumption of the risk was for the jury, "thereby depriving the
appellant of a right guaranteed to it under the provisions of" the
Federal Employers' Liability Act. But if the first clause is more
than an introduction to and reason for the second, then, as we have
indicated, no foundation for such an assignment was laid in the
proceedings before the state courts.
Page 242 U. S. 356
Therefore, even if the courts and parties were wrong about the
proper basis for the suit, that fact does not entitle the defendant
to have the judgment reversed. It cannot complain of a course to
which it assented below.
The defendant, however, as has been seen, did save the questions
concerning its right to a unanimous verdict and the assumption of
risk under the act of Congress, and also concerning the evidence of
its negligence, all of which, of course, in a case arising under
the act, could be brought to this Court. In the present case, the
facts upon which the act of Congress was supposed to apply are
stated and were agreed, so that, although, for the reasons that we
have stated, an error on that point would not entitle the defendant
ant to a new trial, it necessarily must be determined whether they
show a foundation for the attempt to come here upon the questions
that were reserved. The agreed statement is embraced in a few
words. The plaintiff was making repairs upon an engine. This
engine
"had been used in the hauling of freight trains over the
defendant's line . . . which freight trains hauled both intrastate
and interstate commerce, and it was so used after the plaintiff's
injury."
The last time before the injury on which the engine was used was
on October 18, when it pulled a freight train into Marshalltown,
and it was used again on October 21, after the accident, to pull a
freight train out from the same place. That is all that we have,
and is not sufficient to bring the case under the act. This is not
like the matter of repairs upon a road permanently devoted to
commerce among the states. An engine, as such, is not permanently
devoted to any kind of traffic, and it does not appear that this
engine was destined especially to anything more definite than such
business as it might be needed for. It was not interrupted in an
interstate haul to be repaired and go on. It simply had finished
some interstate business and had not yet begun upon any other. Its
next work, so far as appears, might
Page 242 U. S. 357
be interstate or confined to Iowa, as it should happen. At the
moment, it was not engaged in either. Its character as an
instrument of commerce depended on its employment at the time, not
upon remote probabilities or upon accidental later events.
Judgment affirmed.