1. The writ of certiorari properly goes to an intermediate
appellate court where the supreme court of the state has declined
to review its decision. P.
284 U. S. 45.
2. In actions under the Federal Employers' Liability Act, where
the undisputed evidence sustains the defense of assumption of risk,
the trial judge should direct a verdict for the defendant. P.
284 U. S.
46.
The evidence clearly showed that an injury to plaintiff's eye
(caused by a steel chip which flew into it when a rail was being
cut by sledge-hammer and cold chisel) resulted from ordinary
hazards of his employment, which he fully understood and
voluntarily assumed; that there was no complaint against his
exposure to the obvious danger unprotected by goggles, nor any
promise by his superior to mitigate it.
3. In such actions, wherever brought, the rights and obligations
of the parties depend upon the federal Act and applicable
principles of the common law as interpreted and applied in the
federal courts; a subordinate state tribunal should follow in such
cases the views of this Court, though they conflict with those of
the supreme court of the state. P.
284 U. S.
46.
Reversed.
Page 284 U. S. 45
Certiorari, 283 U.S. 815, to review a judgment sustaining a
recovery under the Federal Employers' Liability Act of damages for
personal injuries. The Ohio Supreme Court refused to review the
judgment. The opinion of the Court of Appeals is reported in 9
Oh.L.Abstract 378.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
While employed in interstate commerce as a section hand by
petitioner, an interstate carrier (Acts April 22, 1908, 35 Stat.
65, April 5, 1910, chap. 143, 36 Stat. 291, U.S.Code, Title 45, c.
2), William Kuhn suffered serious injury. Thereafter he sued the
company for damages in the Court of Common Pleas, Pike County,
Ohio. He alleged that the accident resulted from its negligence in
the following matters: ordering him to use a defective sledge
hammer and chisel, failing to promulgate and enforce proper rules
concerning the upkeep of tools ordinarily used, to furnish guards
or goggles for workmen's eyes, to provide a reasonably safe place
for him to work.
The company denied negligence. It also set up in defense that
the plaintiff voluntarily assumed the risk incident to his
employment. At the trial it duly, but unsuccessfully, requested a
directed verdict because of such assumption.
The jury returned a verdict for the respondent. Judgment upon
this was affirmed by the Court of Appeals; the Supreme Court denied
a review. This Court allowed writs of certiorari both to the
Supreme Court, No. 34,
Page 284 U. S. 46
and the Court of Appeals, No. 35. The cause is properly here on
the latter writ. No. 34 will be dismissed.
On the day of the accident, February 9, 1926, William Kuhn, an
experienced section hand 54 years old, was engaged with others in
repairing a side track leading from petitioner's main line to a
steam shovel. It became necessary to remove two steel rails and
shorten them some six or eight inches. They were first laid on the
ground and then cut with a cold chisel. One man held the chisel
while respondent and two others, acting in turn, struck it with a
heavy hammer. None of them wore goggles; none asked for goggles or
objected to the method of operation. The first rail had been
severed; work had begun on the second. While respondent was
standing by awaiting his turn to strike, a steel chip from the
chisel or rail struck and destroyed his eye. On other occasions, he
had assisted in cutting steel rails when goggles were used, and he
knew chips would fly during such an operation. "That was the value
of goggles," he testified. He understood the dangers incident to
the undertaking. The job was a hurry-up one. The assistant foreman
in charge had told the men "to gang up and go in a hurry, that he
wanted to get through there." "Don't be afraid."
We think the evidence clearly discloses that Kuhn's injury
resulted from the ordinary hazards of his employment, which he
fully understood and voluntarily assumed. There was no complaint,
no promise by his superior to mitigate the obvious dangers. The
trial judge should have directed a verdict for the railway
company.
In cases like this, where damages are claimed under the Federal
Employers' Liability Act, defense of the assumption of the risk is
permissible and where the undisputed evidence clearly shows such
assumption the trial judge should direct a verdict for the
defendant. Moreover, in proceedings under that Act, wherever
brought, the rights and obligations of the parties depend upon
it
Page 284 U. S. 47
and applicable principles of common law as interpreted and
applied in the federal courts.
Seaboard Air Line v.
Horton, 233 U. S. 492,
233 U. S. 508;
Chesapeake & Ohio Ry. Co. v. De Atley, 241 U.
S. 310;
Boldt v. Pennsylvania R. Co.,
245 U. S. 441,
245 U. S. 445;
New Orleans & N.E. R. Co. v. Harris, 247 U.
S. 367,
247 U. S. 371;
Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan,
271 U. S. 472,
271 U. S.
474.
The court of appeals acted upon the erroneous theory that it
should follow the views of the Supreme Court of the state, rather
than those of this Court in respect of questions arising under the
Liability Act. That statute, as interpreted by this Court, is the
supreme law to be applied by all courts, federal and state.
Second Employers' Liability Cases, 223 U. S.
1,
223 U. S. 57-58.
Where this view is not accepted, as in the present cause, it is
within the power of this Court to determine and apply the proper
remedy.
The judgment below is reversed. The cause will be remanded for
further proceedings not inconsistent with this opinion.
Reversed.
