In an action in a state court under the Federal Employers'
Liability Act, it was in evidence that the employee, in the line of
his duty, was injured in an effort to raise a coupler without the
aid of a jack; that a jack was the proper appliance for such work;
that he had requested one of his superior repeatedly on former like
occasions, and that it had been promised him a few weeks before the
accident. The court below having affirmed the action of the trial
court in refusing to direct a verdict for defendant upon the
grounds of assumption of risk and absence of negligence,
held that there was no clear and palpable error such as
would justify this Court in disturbing the verdict for the
plaintiff.
Baltimore & Ohio R. Co. v. Whitacre,
242 U. S. 169,
242 U. S. 171.
The case is stated in the opinion.
Page 243 U. S. 573
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The Federal Safety Appliance Acts (as supplemented by Act of
April 14, 1910, c. 160, 36 Stat. 299) prohibit a carrier engaged in
interstate commerce from hauling a car with a defective coupler if
it can be repaired at the place where the defect is discovered.
United States v. Erie R. Co., 237 U.
S. 402,
237 U. S. 409.
The Seaboard Air Line Railway received such a car at one of its
yards. Lorick, the local car inspector and repairer, who discovered
the defect, undertook to make the repairs, as was in the line of
his duty. To do so, it was necessary to raise the coupler, and for
this a jack was the appropriate appliance. None having been
furnished him, he sat down under the coupler and raised it with his
shoulder, which was thereby seriously strained. Occasion to make
similar repairs had previously arisen at this yard at short
intervals. Lorick had for this purpose repeatedly asked the chief
car inspector for a jack, and a few weeks before the accident had
been promised one. Lorick sued the company under the federal
Employers' Liability Act, in a state court of South Carolina, and
testified to the facts above stated.
The case was tried twice before a jury and was twice reviewed by
the Supreme Court of South Carolina. At the first trial, the court
directed a nonsuit on the ground that Lorick had assumed the risk.
The supreme court set aside the nonsuit (102 S.C. 276), holding
that, in view of the promise to supply a jack, the question of
assumption of risk should have been left to the jury, citing
McGovern v. Philadelphia & Reading Ry. Co.,
235 U. S. 389. At
the second trial, defendant asked for a directed verdict on the
grounds both that Lorick had assumed the
Page 243 U. S. 574
risk and that there was no evidence of negligence on defendant's
part. This request being refused, the case was submitted to the
jury under instructions which were not objected to, and a verdict
was rendered for plaintiff. Defendant's exceptions to the refusal
to direct a verdict were overruled by the supreme court. The case
comes here on writ of error, where only these same alleged errors
may be considered.
The appellate court was unanimous in holding that the trial
court had properly left the case to the jury. No clear and palpable
error is shown which would justify us in disturbing that ruling.
Great Northern Ry. Co. v. Knapp, 240 U.
S. 464,
240 U. S. 466;
Baltimore & Ohio R. Co. v. Whitacre, 242 U.
S. 169,
242 U. S. 171.
The judgment is
Affirmed.
MR. JUSTICE VAN DEVANTER and MR. JUSTICE McREYNOLDS dissent.