Assumption of risk is a bar to the action in a case governed by
the Federal Employers' Liability Act, and does not, like
contributory negligence, operate merely in reduction of damages. P.
254 U. S.
In an action governed by the Federal Act where the injuries
resulted from plaintiff's being furnished, and using, an obviously
defective claw bar for drawing bolts, the Supreme Court of
Missouri, applying a local construction of the common law, decided
that, as the risk was attributable to his master's negligence, the
plaintiff did not assume it, but was guilty of contributory
negligence, which went only to the damages under the Federal Act.
erroneous under repeated decisions of this Court
defining the nature and effect of assumption of risk and adjudging
that the Act prevails over state law. Id.
272 Mo. 613 reversed.
The case is stated in the opinion.
MR. JUSTICE McKENNA delivered the opinion of the Court.
Action for personal injuries based on Employers' Liability Act.
Negligence is charged against petitioners as receivers of the
Wabash Railroad Company.
Respondent Williams, plaintiff in the action, was engaged in
tearing down on the line of the railroad,
Page 254 U. S. 44
and a defect in a clawbar which he was directed to use caused
the bar to slip while he was attempting to draw a bolt, in
consequence he lost his balance and fell to the ground, a distance
of twelve feet. The defect, it is alleged, Williams did not
Negligence, however, was charged against him, and assumption of
risk and contributory negligence.
He recovered a verdict in the sum of $5,000. Motions for new
trial and arrest of judgment were denied, and the case was appealed
to the Kansas City Court of Appeals.
The facts, as recited by the court, are that Williams was 21
years old, and had been reared on a farm. He entered the service of
the railroad as a common laborer in August, 1915, and worked for it
until injury in November of that year, his work being that of
"helping build steel bridges and taking down old ones." He was
ordered by the foreman in charge of the work to use a clawbar which
was defective, in that the claws
"had become so rounded and dull by long usage that they could
not be made to grab the shank securely, and slipped from their hold
when plaintiff [Williams] pressed downward on the handle, causing
him to lose his balance and fall from the cap to the ground."
The plaintiff stated that to discover the defect required an
inspection of the underside of the tool, and that, in obeying the
order of the foreman, he did not pause to make such inspection, but
used the tool without any but casual inspection of its top surface,
which did not reveal the defect.
The railroad was engaged in interstate commerce, and the cause
of action, under the case as made, fell within the purview of the
Federal Employers' Liability Act.
The conclusion of the court was that "[t]he defect in the
clawbar was so obvious that the most cursory and superficial
inspection would have disclosed it to the plaintiff." And
"The risk was just as obvious as the
Page 254 U. S. 45
defect. This was a simple tool which, in the course of use,
would be expected to fall into such defective condition, and
plaintiff must be held to have appreciated the danger and to have
voluntarily assumed it."
The court reversed the judgment. It denied a motion for
rehearing, but considered and adjudged:
"That on account of one of the judges deeming the decision to be
in conflict with Fish v. Railway,
263 Mo. 106, 123, it is
without jurisdiction, and therefore orders said cause certified to
the supreme court for its determination."
The supreme court, upon considering Fish v. Railway
other cases, decided that
"it was the duty of the master to furnish the servant a
reasonably safe clawbar with which to do the work. The failure to
furnish that character of a clawbar was negligence upon the part of
the master. If the defects were so glaring, and the clawbar so
patently defective, that an ordinarily prudent servant would not
have used it, then its use under such circumstances was negligence
upon the part of the servant, which negligence, under the rule in
Missouri, would bar him from a recovery. But not so under the
In other words, the court held that Williams' assumption of the
risk did not have the consequence assigned to it by the Kansas City
Court of Appeals, but, if it existed, amounted in legal effect only
to contributory negligence, and that such negligence under the
federal statute worked a reduction of damages, and not a defeat of
the action, and, applying these elements of decision, adjudged that
the "case was well tried by the court nisi,
judgment should be affirmed." It was so ordered.
In its view of the federal statute and the defense under it, the
court erred. Seaboard Air Line Railway Co. v. Horton,
233 U. S. 492
Jacobs v. Southern Railway Co., 241 U.
; Chesapeake & Ohio Ry. Co. v. De
Atley, 241 U. S. 310
Erie R. Co. v. Purucker, 244 U. S. 320
Boldt v. Pennsylvania R. Co., 245 U.
Page 254 U. S. 46
And the requirement of the act prevails over any state law.
Seaboard Air Line v. Horton, supra; Atchison, Topeka &
Santa Fe Ry. Co. v. Harold, 241 U. S. 371
New York Central Railroad Co. v. Winfield, 244 U.
; New Orleans Railroad Co. v. Harris,
247 U. S. 367
Counsel for respondent, however, insists that the views of the
supreme court upon the ruling of the assumption of risk is "of
purely academic interest, and of no practical importance" in the
consideration of the legality of the verdict and judgment in the
trial court. That court, it is said, submitted the fact to the
jury, and also submitted the relative contribution of Williams'
negligence and the negligence of defendants to his injury. But this
is an underestimate of the action of the trial court. The court was
requested to instruct the jury that the effect of the assumption of
risk by Williams incident to the use of the clawbar, and the
circumstances under which it was used, was to relieve defendants
from liability "for the injury resulting therefrom." The court
refused the instruction as it was requested, and amended it by
"and such fact [the assumption of risk] will be considered by
you in determining the amount of plaintiff's recovery, if any,
under all of the instructions."
The refusal and modification were assigned as error, and the
supreme court considered and decided, as we have seen, that the
fact was of no determining importance, and, if it existed, only
constituted contributory negligence, and could operate only in
reduction of the amount of recovery, not defeat recovery. This was
error, as we have seen.
Judgment reversed, and cause remanded for further
proceedings not inconsistent with this opinion.