In actions under the Federal Employers' Liability Act, the
doctrine of assumption of risk has no application when the
negligence of a fellow servant which the injured party could not
have foreseen is the sole, direct and immediate cause of the
injury. P.
258 U. S.
95.
267 Pa.St. 86 reversed.
Certiorari to a judgment of the Supreme Court of Pennsylvania
reversing a judgment for the plaintiff, the present petitioner, in
an action under the Federal Employers' Liability Act, and directing
entry of judgment for the respondent
non obstante
veredicto.
Page 258 U. S. 93
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
The petitioner brought an action in the Court of Common Pleas at
Philadelphia alleged that her husband was negligently killed while
employed in interstate commerce by the Philadelphia & Reading
Railroad, and demanded damages. She claimed under the Federal
Employers' Liability Act. Verdict and judgment having been entered
for her, an appeal was taken to the supreme court of the state, and
reversal sought upon several grounds. That court considered only
one question -- did decedent's death result from a risk which he
assumed as the result of his employment? And, concluding that he
had assumed such risk, it reversed the judgment of the trial court
and entered one for respondent
non obstante veredicto. 267
Pa.St. 86. As found and stated by the supreme court, the facts are
these:
Page 258 U. S. 94
"Decedent was a member of a crew which had brought a train from
Philadelphia to South Bethlehem. Some of the cars contained goods
shipped in interstate commerce. When all the cars were released at
their appropriate places, the engine went back to get the caboose
for the purpose of taking it to the point where it was to stay
until wanted for further traffic, and then itself go to the
roundhouse where it was to remain until again needed. This movement
was through defendant's yard, where there were a number of tracks
upon which cars and locomotives were being shifted constantly.
Through the yard ran also the main passenger tracks of defendant,
and at the points where other tracks crossed over or connected
therewith, derailing devices had been wisely installed for the
purpose of preventing locomotives and cars using the other tracks
from running onto or over the passenger tracks at a time when
passenger trains were standing or traveling thereon, and thereby
possibly causing collision and serious loss of life."
"The engine and caboose which had reached South Bethlehem were
moving over a track which had one of those derailing devices where
it connected with the passenger tracks. The caboose being in front
of the locomotive, the engineer could not see the device when
operating the engine from his cab, and hence decedent was directed
to and did locate himself on the front of the caboose, with a duty
to signal the engineer in time for him to safely stop if the
derailing device was set against further passage. It was so set on
this occasion, but either through the negligence of decedent
himself or of the engineer in failing to notice or heed the
signaling of decedent, the locomotive did not stop in time, the
caboose was derailed, and decedent was crushed to death between it
and cars on an adjoining track."
Accepting the view that the engineer's negligence was the
proximate cause of the fatal injury, the court below
Page 258 U. S. 95
held the decedent had assumed the risk of such negligence and
the master was not liable, citing, among other cases,
Seaboard
Air Line v. Horton, 233 U. S. 492.
This we think was error.
Seaboard Air Line v. Horton -- often followed -- ruled
that the Federal Employers' Liability Act did not wholly abolish
the defense of assumption of risk as recognized and applied at
common law. But the opinion distinctly states that the first
section
"has the effect of abolishing in this class of cases the common
law rule that exempted the employer from responsibility for the
negligence of a fellow employee of the plaintiff."
The
Second Employers' Liability Cases, 223 U. S.
1,
223 U. S. 49,
declared that
"the rule that the negligence of one employee resulting in
injury to another was not to be attributed to their common employer
is displaced by a rule imposing upon the employer responsibility
for such an injury, as was done at common law when the injured
person was not an employee."
And in
Chicago, Rock Island & Pacific Ry. Co. v.
Ward, 252 U. S. 18, we
said:
"The Federal Employers' Liability Act places a co-employee's
negligence, when the ground of the action, in the same relation as
that of the employer as regards assumption of risk."
See New York Central R. Co. v. Carr, 238 U.
S. 260;
Chesapeake & Ohio Ry. v. DeAtley,
241 U. S. 310,
241 U. S.
313.
In actions under the federal act, the doctrine of assumption of
risk certainly has no application when the negligence of a fellow
servant which the injured party could not have foreseen or expected
is the sole, direct, and immediate cause of the injury. To hold
otherwise would conflict with the declaration of Congress that
every common carrier by railroad, while engaging in interstate
commerce, shall be liable to the personal representative of any
employee killed while employed therein when death results from the
negligence of any of the officers, agents or employees of such
carriers.
Page 258 U. S. 96
For the reasons indicated, the judgment of the court below must
be reversed, and the cause remanded for further proceedings not
inconsistent with this opinion.