1. The coverage of the Federal Employers' Liability Act and the
Boiler Inspection Act is not confined to injuries resulting from
accidents, but includes injuries in the nature of occupational
diseases, such as silicosis. Pp.
337 U. S.
173-175,
337 U. S.
180-196.
(a) Negligence of an interstate railroad which results in a
locomotive fireman's contracting silicosis as a result of inhaling
silica dust gives rise to a cause of action under the Federal
Employers' Liability Act independently of the Boiler Inspection
Act. Pp.
337 U. S.
173-175, 180-187.
(b) Failure of an interstate railroad to maintain sanders on its
locomotives in good condition, pursuant to provisions of the Boiler
Inspection Act, is negligence
per se, and gives rise to a
cause of action under the Federal Employers' Liability Act in favor
of a locomotive fireman who contracted silicosis from inhaling
silica dust as a result of the malfunctioning of the sanders. Pp.
337 U. S.
187-195.
2. A complaint which sufficiently charged an interstate railroad
with knowingly having used, in excessive quantities, a dangerous
sand material likely to cause silicosis and in fact causing
complainant to contract it and become permanently disabled, due in
part to faulty adjustment of sanders and failure to use due care in
adjusting them, was sufficient to state a cause of action under the
Federal Employers' Liability Act independently of the Boiler
Inspection Act. Pp.
337 U. S.
175-180.
3. The Boiler Inspection Act vests in the Interstate Commerce
Commission rulemaking power adequate to protect employees against
disease as well as against accidents, and injury resulting from
violations of these rules is compensable under the Federal
Employers' Liability Act. Pp.
337 U. S.
193-194.
4. That petitioner's contraction of silicosis resulted from the
inhalation of silica dust over a period of thirty years and he may
have had silicosis without knowing it for more than three years
before he sued for compensation under the Federal Employers'
Liability Act did not bar his claim when the time which elapsed
between his discovery of his condition and the filing of suit did
not exceed three years, the period of limitations then prescribed
by that Act. Pp.
337 U. S.
168-171.
Page 337 U. S. 164
5. Petitioner sued for compensation under the Federal Employers'
Liability Act, alleging that he had contracted silicosis as a
result of the railroad's negligence and without claiming any
violation of the Boiler Inspection Act. The trial court sustained a
demurrer to the complaint. The State Supreme Court held that the
allegations of negligence were not sufficient to sustain the action
under the Federal Employers' Liability Act alone, but it remanded
the case for trial because it thought that the complaint
sufficiently alleged a breach of the Boiler Inspection Act.
Petitioner amended his complaint to charge specifically violations
of the Boiler Inspection Act; the jury found in his favor, and he
obtained a judgment. On a second appeal, the State Supreme Court
reversed this judgment on the ground that the Boiler Inspection Act
applies only to accidental injuries, and not to occupational
diseases.
Held:
(a) Although the question was neither raised nor considered on
the second appeal to the State Supreme Court, the sufficiency of
petitioner's original claim for negligence involved in the first
appeal is reviewable here, since the first judgment of the State
Supreme Court was not a final judgment. Pp.
337 U. S.
171-172.
(b) Complainant did not waive that question by amending his
complaint to state a claim specifically under the Boiler Inspection
Act or by proceeding with trial on that theory. P.
337 U. S.
172.
6. Local rules of practice cannot bar this Court's independent
consideration of all substantial federal questions actually
determined in earlier stages of litigation by a state court whose
final adjudication is brought here for review. Pp.
337 U. S.
172-173.
A state trial court sustained a demurrer to a complaint seeking
recovery under the Federal Employers' Liability Act for injuries
incurred by contracting silicosis as a result of a railroad's
negligence. The State Supreme Court reversed and remanded the case
for trial, holding that the complaint was sufficient to allege a
breach of the Boiler Inspection Act. 352 Mo. 211, 176 S.W.2d 471.
After amending his complaint so as to allege specifically a
violation of the Boiler Inspection Act, complainant obtained a
judgment in the trial court. On a second appeal, the State Supreme
Court reversed, holding that the Boiler Inspection Act was
inapplicable to injuries
Page 337 U. S. 165
sustained except through accidents. 357 Mo. 738, 210 S.W.2d 98.
This Court granted certiorari. 335 U.S. 809.
Reversed, p.
337 U. S.
196.
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
The primary question is whether the coverage of the Federal
Employers' Liability Act and the Boiler Inspection Act [
Footnote 1] includes injuries in the
nature of occupational disease, here silicosis, or is confined
exclusively to injuries inflicted by accident. After having been
twice before the Supreme Court of Missouri, the case is here on
certiorari, 335 U.S. 809, for review of its final decision on the
second appeal that recovery may not be had for other than
accidental injuries. A statement of the course taken by the
proceedings in the state courts, as well as of the facts, becomes
necessary for resolving the issues presented.
In 1941, petitioner Tom Urie filed suit under the Federal
Employers' Liability Act against respondent Thompson, trustee of
the Missouri Pacific Railroad. According to petitioner's
allegations, he had been employed as a fireman on steam locomotives
of the interstate Missouri Pacific for roughly thirty years. In
1940, he had been forced to cease work by a pulmonary disease
diagnosed
Page 337 U. S. 166
as silicosis. This permanently disabling affliction had been
caused by continuous inhalation of silica dust blown or sucked into
the cabs of the locomotives on which he had worked. The injurious
concentration of silica dust in the air breathed by petitioner
arose from the railroad's use in its locomotives' sanding boxes of
sand materials containing 80 to 90 percent of silica or silicon
dioxide and the emission by the locomotives' faultily adjusted
"sanders" [
Footnote 2] of such
sand materials in excessive amounts beyond those needed to provide
traction for locomotive wheels. Respondent Thompson, trustee of the
railroad since 1933, "knew, or by the exercise of due care should
have known," of the danger of silicosis arising from the conditions
of petitioner's employment. [
Footnote 3]
The trial court sustained respondent's demurrer to the
complaint. On appeal, the Missouri Supreme Court held that the
action could not be maintained by virtue of the Federal Employers'
Liability Act alone, for the reason that respondent could not
have
"anticipated plaintiff's injury, and . . . therefore . . . the
petition does not state facts sufficient to constitute a cause of
action for negligence under the Federal Employers' Liability
Act."
352 Mo. 211, 219, 176 S.W.2d 471, 475. The court felt, however,
that the claimed malfunctioning of the locomotives' sanders was in
substance an allegation of breach of § 2 of the Boiler Inspection
Act, and that, since proof of breach of the latter Act would
support a recovery under the Federal
Page 337 U. S. 167
Employers' Liability Act without regard to respondent's
negligence,
Lilly v. Grand Trunk Western R. Co.,
317 U. S. 481,
317 U. S.
485-486; petitioner had stated a cause of action.
Furthermore, the court held that the Federal Employers' Liability
Act's three-year statute of limitations, 45 U.S.C. § 56, did not
bar petitioner's claim, since his "cause of action accrued in May,
1940, when he became incapacitated. . . ." 352 Mo. at 222, 176
S.W.2d at 477. Accordingly, the court reversed the judgment and
remanded the cause for trial.
On remand, petitioner amended his complaint to charge
specifically violations of the Boiler Inspection Act. Section 2 of
that Act, as amended, makes it
"unlawful for any carrier to use or permit to be used on its
line and locomotive unless said locomotive, its boiler, tender, and
all parts and appurtenances thereof are in proper condition and
safe to operate in the service to which the same are put, that the
same may be employed in the active service of such carrier without
unnecessary peril to life or limb. . . ."
45 U.S.C. § 23. [
Footnote 4]
The violations alleged were (1) that the sanders were broken or
faultily adjusted so as to release too much sand, and (2) that the
locomotive decks and cabs were in a bad state of repair,
Page 337 U. S. 168
admitting dust through various cracks and openings in the cab's
floor and elsewhere which ought to have been sealed off.
The case was tried to a jury under instructions that negligence
was not in issue, and that petitioner should prevail if he proved
that he had contracted silicosis by reason of respondent's breach
of an
"absolute and continuing duty to have such locomotive engines
and all their parts and appurtenances thereof, in proper condition
and safe to operate . . . without unnecessary peril to the life of
Tom Urie. . . ."
The jury found for petitioner in the amount of $30,000.
Upon respondent's appeal the Missouri Supreme Court reversed the
judgment entered on this verdict. 357 Mo. 738, 210 S.W.2d 98.
Noting that, on the former review, it did not "treat with a
contention that "silicosis" is not an evil at which the Act is
aimed,"
id. 357 Mo. at 746, 210 S.W.2d at 102, the court
concluded that the Boiler Inspection Act "is aimed at promoting
safety from accidental injury, as distinguished from injury due to
the gradual inhalation of harmful dusts."
Id. 357 Mo. at
749, 210 S.W.2d at 105. It was to review the state supreme court's
successive constructions of the Federal Employers' Liability and
Bailer Inspection Acts that our writ was issued.
I
Two preliminary contentions first engage our attention. We are
met at the outset by the question whether, without regard to the
legal sufficiency of petitioner's claim under either Act, that
claim is barred as to both Acts by operation of the Federal
Employers' Liability Act's statute of limitations.
Urie filed suit on November 25, 1941. Under the terms of the
then prevailing three-year statute of limitations, [
Footnote 5]
Page 337 U. S. 169
the court could not entertain the claim if Urie's "cause of
action accrued" before November 25, 1938. Respondent contends that
Urie, having been exposed to silica dust since approximately 1910,
must unwittingly have contracted silicosis long before 1938, and
hence that his "cause of action" must be deemed to have "accrued"
longer than three years before the institution of this action.
Alternatively it may be argued that each inhalation of silica dust
was a separate tort giving rise to a fresh "cause of action," and
that Urie is therefore limited to a claim for inhalations between
November 25, 1938, and the spring day in 1940 when he became
incapacitated. [
Footnote 6]
In our view, however, neither of the outlined constructions of
the statute of limitations can be sustained. For, if we assume that
Congress intended to include occupational diseases in the category
of injuries compensable under the Federal Employers' Liability and
Boiler Inspection Acts, such mechanical analysis of the "accrual"
of petitioner's injury -- whether breath by breath or at one
unrecorded moment in the progress of the disease -- can only serve
to thwart the congressional purpose.
If Urie were held barred from prosecuting this action because he
must be said, as a matter of law, to have contracted silicosis
prior to November 25, 1938, it would be clear that the federal
legislation afforded Urie only a delusive remedy. It would mean
that, at some past moment in time, unknown and inherently
unknowable even in retrospect, Urie was charged with knowledge of
the slow and tragic disintegration of his lungs; under this view,
Urie's failure to diagnose within the applicable statute of
limitations a disease whose symptoms had not yet obtruded on his
consciousness would constitute waiver of his right to compensation
at the ultimate day of discovery and disability.
Page 337 U. S. 170
Nor can we accept the theory that each intake of dusty breath is
a fresh "cause of action." In the present case, for example,
application of such a rule would, arguably, limit petitioner's
damages to that aggravation of his progressive injury traceable to
the last eighteen months of his employment. Moreover petitioner
would have been wholly barred from suit had he left the railroad,
or merely been transferred to work involving no exposure to silica
dust, more than three years before discovering the disease with
which he was afflicted. [
Footnote
7]
We do not think the humane legislative plan intended such
consequences to attach to blameless ignorance. Nor do we think
those consequences can be reconciled with the traditional purposes
of statutes of limitations, which conventionally require the
assertion of claims within a specified period of time after notice
of the invasion of legal rights. The record before us is clear that
Urie became too ill to work in May of 1940, and that diagnosis of
his condition was accomplished in the following weeks. There is no
suggestion that Urie should have known he had silicosis at any
earlier date.
"It follows that no specific date of contact with the substance
can be charged with being the date of injury, inasmuch as the
injurious consequences of the exposure are the product of a period
of time, rather than a point of time; consequently the afflicted
employee can be held to be 'injured' only when the accumulated
effects of the deleterious substance manifest themselves. . .
."
Associated Indemnity Corp. v. Industrial Accident
Commission, 124 Cal. App. 378, 381, 12 P.2d 1075, 1076. The
quoted language, used in a state workmen's compensation case, seems
to us applicable in every relevant particular to the construction
of the federal statute of limitations with which we are here
concerned. Accordingly, we agree with the view expressed by the
Missouri
Page 337 U. S. 171
Supreme Court on the first appeal of this case, that Urie's
claim, if otherwise maintainable, is not barred by the statute of
limitations. [
Footnote 8]
We may readily dispose of another preliminary question
concerning the issues which are now properly before us. Respondent
argues, somewhat surprisingly, that the sufficiency of petitioner's
original claim for negligence involved in the first appeal is not
properly here, since it was neither raised nor considered on the
second appeal to the Missouri Supreme Court. The short answer is
that petitioner has brought the claim to this Court at his first
opportunity, and it was not necessary for him to relitigate that
claim a second time through the state courts in order to preserve
it for our consideration on review of the final judgment rendered
in the cause.
From the opinions of the state supreme court, we know judicially
[
Footnote 9] that its judgment
negating the general claim for negligence was coupled with its
subsequently repudiated conclusion that petitioner had stated a
cause of action under the Boiler Inspection Act and that,
consequently, the court remanded the cause for trial, not for
dismissal. The judgment therefore was not final; it was
interlocutory, and not reviewable here within the meaning
Page 337 U. S. 172
of our jurisdictional statute. 28 U.S.C. § 344(b) (now §
1257(3)). [
Footnote 10]
Although the Missouri Supreme Court's disposition of the first
appeal precluded review here at that time of the ruling adverse to
petitioner, Urie did not waive that question by amending his
complaint, in conformity with the court's mandate, to state his
claim more specifically in terms of the Boiler Inspection Act, or
by proceeding with trial on that theory. As the case then stood,
this was his only remaining chance for success unless he was to
waive it, ask for final judgment to be entered against him on the
general negligence issue, and rely solely upon securing review of
that judgment and reversal by this Court.
Whatever the effect of the state supreme court's ruling for
further proceedings in the state courts, [
Footnote 11] it could not impose such an alternative
upon petitioner. Local rules of practice cannot bar this Court's
independent consideration of all substantial federal questions
actually determined in earlier stages of the litigation by the
court whose final adjudication is brought here for review.
Zeckendorf v. Steinfeld, 225 U. S. 445,
225 U. S. 454;
Messinger v. Anderson, 225 U. S. 436,
225 U. S. 444.
Even so, we think sound practice would see to it that such
questions were expressly preserved in the later stages of review.
But, as this Court has had occasion heretofore to observe, its
power to probe issues disposed of on appeals prior to the one under
review is, in the last analysis, a "necessary correlative" of the
rule which limits it to the examination
Page 337 U. S. 173
of final judgments.
Louisiana Navigation Co. v. Oyster
Commission, 226 U. S. 99,
226 U. S. 102.
[
Footnote 12]
Accordingly, even if it should be held that petitioner has
stated no claim under the Boiler Inspection Act, the judgment now
in review cannot stand unless the Missouri Supreme Court rightly
concluded, on the first appeal, that petitioner's original
complaint stated no cause of action for negligence under the
Federal Employers' Liability Act, considered apart from any effect
of the Boiler Inspection Act. That question is properly presented,
and to it we now turn.
II
Section 1 of the Federal Employers' Liability Act provides:
"Every common carrier by railroad while engaging in commerce . .
. shall be liable in damages to any
Page 337 U. S. 174
person
suffering injury while he is employed by such
carrier in such commerce . . .
for such injury or death
resulting in whole or in part from the negligence of any of
the officers, agents, or employees of such carrier,
or by
reason of any defect or insufficiency, due to its negligence,
in its cars, engines, appliances, machinery, track, roadbed, works,
boats, wharves, or other equipment."
45 U.S.C. § 51. (Emphasis added.)
The section does not define negligence, leaving that question to
be determined, as the Missouri Supreme Court said, "by the common
law principles as established and applied in the federal courts."
352 Mo. at 218, 176 S.W.2d at 474.
Erie R. Co. v.
Tompkins, 304 U. S. 64, has
no application. What constitutes negligence for the statute's
purposes is a federal question, not varying in accordance with the
differing conceptions of negligence applicable under state and
local laws for other purposes. Federal decisional law formulating
and applying the concept governs. [
Footnote 13] Hence, the Missouri Supreme Court's decision
on the first appeal, that the complaint did not state a cause of
action for negligence, is subject to our independent review, and is
not to be taken as governed conclusively by the state court
decisions which alone were cited in support of the
determination.
Of course, if silicosis caused by the employment is not an
"injury" within the statutes' intended coverage, no cause of action
could be stated for that injury under the statute, even though the
allegations of fault and causation
Page 337 U. S. 175
were wholly sufficient. The Missouri Supreme Court's first
decision, however, assumed that silicosis fell within the statute's
broad term "injury," and held that it would not "be reasonable to
hold, under the facts admitted by the demurrer, that defendant
should have anticipated plaintiff's injury. . . ." 352 Mo. at 219,
176 S.W.2d at 475. Accordingly, the court ruled that no cause of
action for negligence under the Act had been stated.
Upon the assumption that silicosis, when caused by the
employment, is a compensable employee "injury," the adequacy of
petitioner's claim turns solely on whether his original complaint
alleged facts raising a triable issue of negligence. We think that,
under the standards heretofore set and followed by this Court,
[
Footnote 14] the facts
alleged in the complaint and taken as admitted by the demurrer
clearly stated a cause of action for negligence.
Those facts have been briefly, though only partially, summarized
above. They charged that respondent used in the locomotives'
sanders a sand material containing a very high percentage of silica
or silicon dioxide; that often the material would come to the rails
from the sanders in excessive and unnecessary quantities, and would
there be ground to dust; that the dust containing "such usual and
unusual quantity of silican dioxide would come" into the engine
cabs and, "frequently of unusual quantity," would be breathed by
petitioner, and that respondent "knew, or by the exercise of due
care should have known," that the sand contained the high
percentage of silicon dioxide; that "the dust would form and
frequently of excessive quantity because of said sanders,"
Page 337 U. S. 176
come into the cab and be breathed by petitioner, and that, over
a period of time, the breathing was "dangerous to the health and
life, and would likely cause to the plaintiff the condition
resulting to the plaintiff." The complaint then stated the further
allegations set forth in the margin, [
Footnote 15] together with the following paragraph:
"Plaintiff further alleges that the sanding devices on said
engines were all of the usual and customary type and used for the
usual and customary purpose, and, if ordinary care was exercised in
keeping them adjusted, such large quantities of such sandy silica
material would not escape; that plaintiff does not know whether the
same kind of sand containing such high quality of silica was used
by other railroads operating over or through such parts of the
country of Missouri; that such sanding devices operated in the same
manner by the same means as devices on locomotives of other
railroads, and if kept in normal and regular working condition,
would not allow such large quantities of silica dust to form as
above stated."
These and other allegations sufficiently charged respondent with
knowingly having used, in excessive quantities
Page 337 U. S. 177
due in part to faulty adjustment of the sanders and respondent's
failure to use due care in adjusting them, a dangerous and material
likely to cause silicosis and in fact, causing petitioner to
contract it and become permanently disabled. This would seem to be
clearly adequate for stating a cause of action for negligence
resulting in injury within the meaning of the statute and the
applicable judicial standards to which we have referred. All the
usual elements are comprehended, including want of due or ordinary
care, proximate causation of the injury, and injury within our
assumption for present purposes of statutory coverage.
To sustain the contrary view, however, the Missouri Supreme
Court seems to have ruled as a matter of law the respondent had
adhered to the customary standards of the trade, stressing the
admission in petitioner's complaint that the sanding devices
alleged to have been faultily adjusted were of the kind ordinarily
used throughout the railroad industry. Contrary to the court's
apparent conclusion, this obviously was not an admission that
respondent had complied with the usual standards of the trade.
There was neither admission by petitioner nor evidence of anything
more than that respondent's sanders were "all of the usual and
customary type" which, if kept properly adjusted by ordinary care,
would not have allowed such large and excessive quantities of
silica dust to escape, concentrate in the cab, and be breathed by
petitioner. There was no admission that other railroads generally
or in the region customarily used such high silica content
materials for sanding purposes or that, if they did, they did not
take steps to minimize potentially harmful effects. Moreover,
assuming the premise that maintenance of trade standards negatives
negligence, we cannot grasp its significance in this context absent
any indication
Page 337 U. S. 178
that
faultily adjusted sanding devices are the rule,
rather than the exception on American steam locomotives.
But we also reject the premise, for we think that negligence,
within the meaning of the Federal Employers' Liability Act,
attached if respondent "knew, or by the exercise of due care should
have known," that prevalent standards of conduct were inadequate to
protect petitioner and similarly situated employees.
Cf. Hill
v. Atlantic Coast Line R. Co., 336 U.S. 911,
rev'g
229 N.C. 236, 49 S.E.2d 481.
See also Sadowski v. Long Island
R. Co., 292 N.Y. 448, 456-457, 55 N.E.2d 497. [
Footnote 16] Respondent's knowledge, actual
or constructive, of the alleged inadequacies of the sanding
equipment was a jury question. Whether petitioner was then or now
would be able to shoulder the burden of proving respondent's
knowledge we need not surmise, though the evidence adduced by
petitioner at trial under the Boiler Inspection Act -- indicating
that others besides petitioner had observed and reported defects in
respondent's
Page 337 U. S. 179
locomotive equipment -- underscores our insistence that issues
of fact are matters for the jury. [
Footnote 17]
Accordingly, we think the state court's ruling that the facts
stated in the original complaint were insufficient to constitute a
charge of negligence on respondent's part, within the meaning of
the Federal Employers' Liability Act considered apart from the
effect of the Boiler Inspection Act, was wrong and must be
overruled. What was said by the New York Court of Appeals in
Sadowski v. Long Island R. Co., supra, 292 N.Y. at
455-456, 55 N.E.2d at 500, in sustaining a recovery for silicosis
under the Act, fits very closely the facts of this case and
represents, in our opinion, the correct view:
"Ordinary care must be in proportion to the danger to be avoided
and the consequences that might reasonably be anticipated from the
neglect (
Baltimore and Potomac Railroad Company v. Jones,
95 U. S.
439;
Bailey v. Central Vermont R. Co.,
supra [319 U.S. 350]). It must be commensurate with
known dangers. Defendant created the
Page 337 U. S. 180
place in which the work was done and supervised the doing of the
work by plaintiff, and was aware for a period of at least sixteen
years of the conditions under which plaintiff was required to work,
and of the means and methods by which its work was accomplished. It
is a matter of common knowledge that it is injurious to the lungs
and dangerous to health to work in silica dust, a fact which
defendant was bound to know. [
Footnote 18]"
The question remains whether silicosis is an "injury" within the
meaning of that term as used in the Federal Employers' Liability
Act. It is a novel one for this Court. But we think silicosis is
within the statute's coverage when it results from the employer's
negligence. Considerations arising from the breadth of the
statutory language, the Act's humanitarian purposes, its accepted
standard of liberal construction in order to accomplish those
objects, the absence of anything in the legislative
Page 337 U. S. 181
history indicating a congressional intent to require a
restricted interpretation or expressly to exclude such occupational
disease, and the trend of existing authorities dealing with the
question combine to support this conclusion.
We recognize, of course, that, when the statute was enacted,
Congress' attention was focused primarily upon injuries and death
resulting from accidents on interstate railroads. [
Footnote 19] Obviously these were the major
causes of injury and death resulting from railroad operations. But
accidental injuries were not the only ones likely to occur. And
nothing in either the language or the legislative history discloses
expressly and intent to exclude from the Act's coverage any injury
resulting "in whole or in part from the negligence" of the carrier.
If such an intent can be found, it must be read into the Act by
sheer inference.
The language is as broad as could be framed: "any person
suffering injury while he is employed;" and "such injury or death
resulting in whole or in part from the negligence of any of the
officers, agents, or employees of such carrier;" "by reason of any
defect or insufficiency, due to its negligence, in its cars,
engines, appliances," etc. On its face, every injury suffered by
any employee while employed by reason of the carrier's negligence
was made compensable. The wording was not restrictive as to the
employees covered; the cause of injury, except that it must
constitute negligence attributable to the carrier; or the
particular kind of injury resulting.
To read into this all-inclusive wording a restriction as to the
kinds of employees covered, the degree of negligence required, or
the particular sorts of harms inflicted would be contradictory to
the wording, the remedial and humanitarian purpose, and the
constant and established
Page 337 U. S. 182
course of liberal construction of the Act followed by this
Court. [
Footnote 20]
We recognize, with respondent, that the Federal Employers'
Liability Act is founded on common law concepts of negligence and
injury, subject to such qualifications as Congress has imported
into those terms. If respondent were right in suggesting that the
common law does not recognize occupational disease as a category of
compensable injury, he would lend substance to the argument that
Congress' use of the word "injury" was less broad than the word's
surface connotation indicates. However, although the contrary view
has been advanced, [
Footnote
21] we are satisfied that the difficulties which have attached
to tort recovery for occupational disease inhere not in the nature
of the wrong, but in the difficulty of proving negligence. For, as
the Ohio Supreme Court observed with reference to silicosis,
"In the early period of industrial development, there was little
medical knowledge regarding the origin of diseases peculiar to the
various employments. . . ."
Triff v. National Bronze & Aluminum Foundry Co.,
135 Ohio St.191, 195, 20 N.E.2d 232, 234. We do not doubt that,
at
"common law, the incurring of a disease or harm to health is
such a personal wrong as to warrant a recovery if the other
elements of liability for tort are present. [
Footnote 22] "
Page 337 U. S. 183
Viewing the Federal Employers' Liability Act as a negligence
statute, we think that arguments drawn from the coverage accorded
occupational diseases in state workmen's compensation statutes
cannot control the present inquiry. And yet we may note in passing
that decisions under such statutes, to whatever extent they may be
thought relevant, offer little support to respondent's narrow view
of the federal legislation before us. True it is that the British
Workmen's Compensation Act of 1897, 60 & 61 Vict. c. 37,
although covering anthrax contracted by claimant from a particular
and identifiable processing of wool,
Turvey v. Brinton's
Ltd., [1904] 1 K.B. 328,
aff'd, [1905] A.C. 230, was
held to exclude gradual lead poisoning.
Steel v. Cammell, Laird
& Co., [1905] 2 K.B. 232. But it is equally true that the
statute there construed provided for compensation only in cases of
"personal injury
by accident," (emphasis added), a
limitation much stressed by the opinions in
Steel v. Cammell,
Laird & Co., supra. And see Walker v. Lilleshall Coal
Co., [1900] 1 Q.B. 488. Decisions in this country have
uniformly followed the early British rule in construing such terms
as "accident" and "accidental injury," as well as "personal injury
by accident." [
Footnote
23]
But decisions construing "personal injury" -- more nearly akin
to the simple "injury" of the Federal Employers' Liability Act --
are in conflict. Thus, the Supreme
Page 337 U. S. 184
Court of Ohio excluded occupational diseases in view of the
special legislative and constitutional context of the statute
considered, while recognizing that otherwise it would be "no
difficult matter to bring within the purview of the words "personal
injuries sustained in the course of employment" occupational
diseases incurred in course of employment."
Industrial
Commission v. Brown, 92 Ohio St. 309, 312-313, 110 N.E. 744,
745;
cf. Industrial Commission v. Roth, 98 Ohio St. 34,
120 N.E. 172. The Connecticut Supreme Court, relying on its common
law view that "typical" occupational diseases were not compensable,
likewise excluded occupational diseases from its "personal injury"
statute.
Miller v. American Steel & Wire Co., 90 Conn.
349, 97 A. 345. But against this line of authority may be set the
view of the Supreme Judicial Court of Massachusetts, speaking by
Chief Justice Rugg, which held that blindness caused by noxious
industrial vapors was a "personal injury" within the meaning of the
Massachusetts statute.
Hurle's Case, 217 Mass. 223, 104
N.E. 336.
Consonant with the Massachusetts statute is the one compensation
act the meaning of which may be thought directly to bear on
congressional use of the word "injury" in the federal negligence
statute with which we are today concerned. The Federal Employees'
Compensation Act of May 30, 1908, 35 Stat. 556, approved less than
two months after the Federal Employers' Liability Act, provided
compensation for certain classes of federal employees "injured in
the course of . . . employment." Under this statute compensation
was awarded for,
inter alia, inhalation of dust and fine
scale, [
Footnote 24] lead
poisoning, [
Footnote 25]
Page 337 U. S. 185
cardiac hypertrophy caused by inhalation of ether, [
Footnote 26] and throat tuberculosis
aggravated by brass poisoning. [
Footnote 27] In short, the workmen's compensation cases
offer little comfort
Page 337 U. S. 186
to respondent's view of the Federal Employers' Liability
Act.
While no decision of this Court involving the Federal Employers'
Liability Act has dealt specifically with silicosis, the New York
Court of Appeals, as we have indicated above, has sustained
recovery under the Act for that disease when resulting from the
carrier's negligence. This was done in circumstances not
substantially different from those alleged in petitioner's original
complaint, except that the facts involved no possible application
of the Boiler Inspection Act.
Sadowski v. Long Island R. Co.,
supra. Moreover, other state and federal decisions have
authorized recovery under the Act for injuries not caused by
accidental or violent means. These include
Shelton .v
Thomson, 148 F.2d 1; 157 F.2d 709, where recovery was
permitted for carbon monoxide poisoning;
Baltimore & O. R.
Co. v. Branson, 128 Md. 678, 98 A. 225,
reversed on other
grounds, 242 U.S. 623, in which recovery was allowed for paint
poisoning.
Cf. Chicago, R.I. & P. R. Co. v. Cheek, 105
Okl. 91, 231 P. 1078. Not all of these decisions could be sustained
if the statutory term "injury" were held to require that the harm
suffered from the employer's negligence must be confined to that
inflicted by "external, violent and accidental" means or be an
"accidental injury," as respondent's narrow view of the statute's
coverage seems to contemplate.
We would be most hesitant to adopt a construction of "injury" as
used in this Act which would overrule the decisions last cited or
seriously impair their authority. We think they were made in the
spirit the statute contemplated for its administration and
application. That spirit is one not in conformity with importing
nice distinctions in applying the Act's broad and general terms or
cutting down their full scope by inference or implication.
In our view, when the employer's negligence impairs or destroys
an employee's health by requiring him to work
Page 337 U. S. 187
under conditions likely to bring about such harmful
consequences, the injury to the employee is just as great when it
follows, often inevitably, from a carrier's negligent course
pursued over an extended period of time as when it comes with the
suddenness of lightning. Silicosis is as much "injury," leading in
time as certainly to permanent disability, as scalding from a
boiler's explosion. We do not think the mere difference in the time
required for different acts of negligence to take effect and
disclose their harmful, disabling consequences would justify
excluding the one type of injury from the Act's coverage, or that
such an exclusion would be consistent with its language, purposes,
or unvarying standards of construction.
Accordingly, it follows, as the Missouri Supreme Court assumed
on the first appeal, that petitioner's original complaint did not
fail in stating a cause of action under the Federal Employers'
Liability Act for want of allegation of sufficient injury.
Petitioner was entitled to go to trial at that time without
restriction requiring him to show violation of the Boiler
Inspection Act.
This conclusion, if it were all that is involved in the case,
would compel reversal of the state supreme court's decision and
remand for trial upon the original complaint. However, it remains
to consider the effect of the Boiler Inspection Act, and whether
the verdict rendered for petitioner under that Act, in conjunction
with the Federal Employers' Liability Act, should be allowed to
stand.
III
By virtue of the course taken by the case in the state courts,
the Missouri Supreme Court did not squarely hold that silicosis was
not an injury within the coverage of the Federal Employers'
Liability Act considered apart from the Boiler Inspection Act. As
the case took shape, that question did not arise on the first
appeal. And, by
Page 337 U. S. 188
virtue of the ruling on the remand for trial, that the only
cause of action stated was that arising under the Boiler Inspection
Act, the court, on the second appeal, treated the question whether
silicosis was a compensable injury substantially as if the Boiler
Inspection Act was a wholly independent statute, unrelated in the
scope of its coverage, for purposes of employees' suits for breach
of its provisions, to the Employers' Liability Act's terms,
i.e., as if the question arose solely under the Boiler
Inspection Act.
But, by its own terms, the Boiler Inspection Act, like the
Safety Appliance Acts, [
Footnote
28] does not purport to confer any right of action upon injured
employees. It merely makes violation of its prohibitions
"unlawful." [
Footnote 29]
Yet it has been held consistently that the Boiler Inspection Act
supplements the Federal Employers' Liability Act by imposing on
interstate railroads "an absolute and continuing duty" to provide
safe equipment.
Lilly v. Grand Trunk Western R. Co.,
supra, at
317 U. S. 485;
Southern R. Co. v. Lunsford, 297 U.
S. 398,
297 U. S. 401;
cf. Baltimore & O. R. Co. v. Groeger, 266 U.
S. 521,
266 U. S.
528-529.
This conclusion stems not from any express statutory language,
but by implication from §§ 3 and 4 of the Federal Employers'
Liability Act, 45 U.S.C. §§ 53, 54, which bar pleadings of,
respectively, contributory negligence and assumption of risk
"in any case where the violation by such common carrier of any
statute enacted for the safety of employees contributed to the
injury or death of such employee. [
Footnote 30]"
But it is § 1 of the Federal Employers'
Page 337 U. S. 189
Liability Act, and not §§ 3 and 4, which expressly creates a
cause of action for negligence, and, by the same token, it is § 1
which is the basis of an employee's suit for violation of the
Boiler Inspection or Safety Appliance Acts. For where § 1
"refers to 'any defect or insufficiency,
due to its
negligence, in its cars, engines, appliances,' etc., it
clearly is the legislative intent to treat a violation of the
safety appliance act as 'negligence,' -- what is sometimes called
negligence
per se."
San Antonio & A.P. R. Co. v. Wagner, 241 U.
S. 476,
241 U. S.
484.
In this view, the Safety Appliance Acts, together with the
Boiler Inspection Act, are substantively, if not in form,
amendments to the Federal Employers' Liability Act. They dispense,
for the purposes of employees' suits, with the necessity of proving
that violations of the safety statutes constitute negligence, and
making proof of such violations is effective to show negligence as
a matter of law. Thus taken, as has been the consistent practice,
the Boiler Inspection and Safety Appliance Acts cannot be regarded
as statutes wholly separate from and independent of the Federal
Employers' Liability Act. They are, rather, supplemental to it,
having the purpose and effect of facilitating employee recover, not
of restricting such recovery or making it impossible.
Page 337 U. S. 190
Regarded in this light, the Boiler Inspection and Safety
Appliance Acts would take on highly incongruous character if, at
the very time they were expediting employee recovery under the
Employers' Liability Act by substituting the comparatively light
burden of proving violation of their prohibitions for the heavier
one of proving negligence, they were also contracting the scope of
compensable injuries, and, to that extent, defeating recovery
altogether. We do not think that Congress intended to act so
inconsistently, or that, by dispensing with the employee's burden
of proving negligence in certain classes of Employers' Liability
Act suits, it had any purpose to withdraw from that Act's coverage
any injury caused by the employment which was covered by its terms.
In the absence of any specific showing that Congress had in mind
such a restrictive and inconsistent object, we are not free to
create one by inference, more especially when it is derived from
approaching the problem as if the Boiler Inspection and Safety
Appliance Acts were wholly independent of and separate in design
and purpose from the Employers' Liability Act.
The congressional purpose underlying the Boiler Inspection Act
is basically the same as that underlying the Safety Appliance Acts
and the Employers' Liability Act. In requiring that the boiler and,
not long after that, the entire locomotive, be maintained "in
proper condition and safe to operate," Congress, by its own
statement, was attempting to insure that such equipment "be
employed in . . . active service . . . without unnecessary peril to
life or limb. . . ." 45 U.S.C. § 23. Certain requirements of the
Safety Appliance Acts, as, for example, the use of the automatic
coupler, 45 U.S.C. § 2, are made mandatory by express statutory
language. Others, like those of the Boiler Inspection Act, simply
outline a general standard which may be more specifically
articulated in rules enunciated by the carriers subject to the
approval
Page 337 U. S. 191
of the Interstate Commerce Commission, 45 U.S.C. § 28, or
directly promulgated by the Commission,
Napier v. Atlantic
Coast Line R. Co., 272 U. S. 605,
272 U. S.
611-613, on the basis of proper findings.
United
States v. Baltimore & O. R. Co., 293 U.
S. 454. Violations of the Commission's rules are
violations of the statute, giving rise not only to damage suits by
those injured,
Lilly v. Grand Trunk Western R. Co., supra,
but also to money penalties recoverable by the United States. 45
U.S.C. § 34.
As with the Employers' Liability Act, we do not doubt that the
prime purpose of the Boiler Inspection Act was the protection of
railroad employees, and perhaps also of passengers and the public
at large,
cf. Fairport, P. & E. R. Co. v. Meredith,
292 U. S. 589,
from injury due to industrial accident. The safety of all those
affected by railroading was uppermost in the legislative mind. But
again, as with the Employers' Liability Act, we cannot accept the
view that protection of employee health is not embraced by the
congressional plan. [
Footnote
31] Indeed, as to the Boiler Inspection Act, this Court has
twice had
Page 337 U. S. 192
occasion to make clear its contrary view,
Napier v. Atlantic
Coast Line R. Co., supra; United States v. Baltimore & O. R.
Co., supra, at
293 U. S.
458-459.
In the
Napier case, the question for decision was the
validity of Wisconsin and Georgia regulations requiring locomotives
to be equipped with, respectively, cab curtains and an automatic
fire door. Each state regulation was challenged as an invasion of
power over interstate commerce which Congress, through enactment
and amendment of the Boiler Inspection Act, had seen fit to
exercise. Each regulation was defended as being directed to
protection of the health, rather than the safety, of railroad
employees. The unanimous Court, speaking through Mr. Justice
Brandeis, struck down both regulations
"because the Boiler Inspection Act, as we construe it, was
intended to occupy the field. The broad scope of the authority
conferred upon the Commission leads to that conclusion. Because the
standard set by the Commission must prevail, requirements by the
states are precluded, however commendable or however different
their purpose."
272 U.S. at
272 U. S. 613.
This last-quoted sentence merely recognized that, theretofore,
the Interstate Commerce Commission had not regulated with an eye to
employee health; it did not and does not support the view that
employee health was thought not to be within the compass of the
Act, as other language in
Napier, 272 U.S. at
272 U. S.
611-613, makes amply clear:
"The requirements here in question are, in their nature, within
the scope of the authority delegated to the Commission. An
automatic firedoor and an effective cab curtain may promote safety.
Keeping firemen and engineers in good health, like preventing
excess fatigue through limiting the hours of service, clearly does
so, although indirectly. . . . "
Page 337 U. S. 193
"If the protection now afforded by the Commission's rules is
deemed inadequate, application for relief must be made to it. The
Commission's power is ample."
Thus, the Boiler Inspection Act vests in the Interstate Commerce
Commission rulemaking power adequate to protect employees against
disease as well as against accident, and the power to make rules
for employee health has been exercised. [
Footnote 32]
In view of these considerations, it cannot be said that the
Commission's rulemaking power is confined to safeguarding
Page 337 U. S. 194
against accidental injury; nor are we free to lay down a rule of
law which would so restrict the Commission's authority. Since we
are unable to find in the Boiler Inspection Act's terms, purposes
or legislative history either explicit provision or any sufficient
basis for inferring one cutting down the scope of recovery allowed
under § 1 of the Employers' Liability Act, we conclude that the
injury for which recovery may be had for violation of the Boiler
Inspection Act is no narrower in scope than the injury for which
recovery is authorized under § 1 of the Employers' Liability
Act.
We hold that petitioner's injury is one compensable under the
Boiler Inspection Act. We hold further, in the light of the trial
instructions and such evidence as appears in the record before us,
[
Footnote 33] that the jury
was justified in finding (1) that respondent breached the
Boiler
Page 337 U. S. 195
Inspection Act (as more specifically articulated in I.C.C.Rule
120, governing sanders), [
Footnote 34] and (2) that such breach was a proximate
cause of petitioner's injury.
Page 337 U. S. 196
We conclude that petitioner stated a valid claim for negligent
injury under the Federal Employers' Liability Act on his first
appeal, and that petitioner stated on both appeals and proved on
his second a valid claim for injury flowing from violation of the
Boiler Inspection Act. The record before us reveals no error in the
jury's verdict for petitioner, which was based on the second theory
of the case; the damages awarded are consistent with either theory.
We have considered and disposed of the various grounds of
affirmance urged by respondent; grounds not urged, whether on the
record before us or on such supplemental portions of the state
court record as respondent might have asked us to review, are
waived. Accordingly, the judgment is reversed, and the cause is
remanded with instructions to reinstate the judgment on the verdict
for petitioner.
Reversed.
[
Footnote 1]
Respectively, 45 U.S.C. § 51
et seq., and 45 U.S.C. §
23
et seq.
[
Footnote 2]
"Sander" is, colloquially, the name given by railroad men to the
entire apparatus appurtenant to a locomotive which stores sand and
pipes it to the rails as needed to provide traction. The apparatus
is mandatory equipment in interstate commerce, I.C.C.Rule 120, 49
C.F.R. § 91.120; I.C.C.Rule 235, 49 C.F.R. § 91.235. For succinct
descriptions of a compressed-air powered sanding apparatus,
see the successive opinions in
Anderson v. Baltimore
& O. R. Co., 89 F.2d 629 and 96 F.2d 796.
[
Footnote 3]
See note 9
[
Footnote 4]
The section continues,
"and unless said locomotive, its bailer, tender, and all parts
and appurtenances thereof have been inspected from time to time . .
. and are able to withstand such test or tests as may be prescribed
in the rules and regulations hereinafter provided for."
45 U.S.C. § 23, 36 Stat. 913, 38 Stat. 1192, 43 Stat. 659.
Section 2 was first enacted in 1911 to cover the locomotive
boiler and its appurtenances, 36 Stat. 913. It was broadened in
1915 to include the entire locomotive and tender, 38 Stat. 1192,
and see the 1924 amendment. 43 Stat. 659.
The second amended complaint, to which the demurrer involved in
the first appeal applied, did not mention specifically either the
Federal Employers' Liability Act or the Boiler Inspection Act, but
set forth facts generally from which the state supreme court's
conclusions concerning the applicability of those acts were
drawn.
[
Footnote 5]
45 U.S.C. § 56. The former two-year statute of limitations, 35
Stat. 66, was lengthened to three years by the 1939 amendment. 53
Stat. 1404.
[
Footnote 6]
Cf. Pieczonka v. Pullman Co., 89 F.2d 353, 356-357.
[
Footnote 7]
See Pieczonka v. Pullman Co., 89 F.2d 353, 356-357.
[
Footnote 8]
Compare the New York Court of Appeals' similar
application, to a silicosis claim, of the Federal Employers'
Liability Act's statute of limitations.
Sadowski v. Long Island
R. Co., 292 N.Y. 448, 457-458, 55 N.E.2d 497.
[
Footnote 9]
The opinion rendered on the first appeal, 352 Mo. 211, 176
S.W.2d 471, extensively quotes the original complaint's allegations
concerning negligence,
id. 352 Mo. at 215-216, 176 S.W.2d
471, and a copy of that complaint appearing in the present record
shows that the quotations comprehend substantially all of the
allegations in that respect. The present record does not include a
copy of the text of the judgment rendered on the first appeal; but
that deficiency is merely formal, if it is a deficiency in any
sense, since the opinions on both appeals supply us with full
knowledge of the nature and effect of that judgment.
[
Footnote 10]
"As its judgment upon the first writ was merely for a reversal
of the court below, and for a . . . trial, such judgment, not being
final, could not be made the subject of a writ . . . from this
court."
United States v. Denver & R.G. R. Co., 191 U. S.
84,
191 U. S. 93.
See Coe v. Armour Fertilizer Works, 237 U.
S. 413,
237 U. S.
418-419;
Gospel Army v. City of Los Angeles,
331 U. S. 543, and
authorities cited.
[
Footnote 11]
Cf. Creason v. Harding, 344 Mo. 452, 463-464, 126
S.W.2d 1179.
[
Footnote 12]
If it were otherwise, our corrective hand could be stayed by any
local procedure which chose to resolve all substantial federal
questions in an intermediate phase of litigation. The present case
lends point to language used by this Court in dismissing a writ of
error to a state court for lack of a final judgment:
"When the litigation in the state courts is brought to a
conclusion, the case may be brought here upon the Federal questions
already raised as well as any that may be raised hereafter; for,
although the state courts, in the proceedings still to be taken,
presumably will feel themselves bound by the decision heretofore
made by the [state] supreme court . . . as laying down the law of
the case, this court will not be thus bound."
Grays Harbor Logging Co. v. Coats-Fordney Logging Co.,
243 U. S. 251,
243 U. S.
256-257. Accordingly, even if it were assumed that no
federal question of substance was decided on the second appeal and
that the
"basis for our jurisdiction must be found, if at all, in the
decision and opinion of the state Supreme Court upon a prior appeal
in the same case,"
petitioner Urie has
"invoked the jurisdiction of this court at the first opportunity
open to [him], and the federal question, having been considered by
the state Supreme Court, is properly here."
Gant v. Oklahoma City, 289 U. S.
98,
289 U. S. 100.
See generally Boskey, Finality of State Court Judgments
under the Federal Judicial Code, 43 Col.L.Rev. 1002, 1007,
1016.
[
Footnote 13]
Bailey v. Central Vermont R. Co., 319 U.
S. 350,
319 U. S. 352;
Chesapeake & Ohio R. Co. v. Kuhn, 284 U. S.
44,
284 U. S. 46-47;
St. Louis, I.M. & S. R. Co. v. McWhirter, 229 U.
S. 265,
229 U. S. 277;
Second Employers' Liability Cases, 223 U. S.
1,
223 U. S. 54-55,
223 U. S. 57-58.
Cf. Schlemmer v. Buffalo, R. & P. R. Co., 205 U. S.
1.
[
Footnote 14]
See, e.g., Ellis v. Union Pacific R. Co., 329 U.
S. 649;
Western & Atlantic R. Co. v.
Hughes, 278 U. S. 496.
Cf. Brady v. Southern R. Co., 320 U.
S. 476;
Chicago, M. & St.P. R. Co. v.
Coogan, 271 U. S. 472.
[
Footnote 15]
"(2) Defendant negligently failed to furnish plaintiff a
reasonably safe place in which to work in that the locomotives on
which plaintiff was required to work as fireman were supplied with
sand for the sanders thereof which contained a very high percentage
of silica or silican dioxide as above, and defendant knew such
fact, and still defendant used same and used said engines under the
conditions above described."
"(3) Although the defendant was using sandy substance containing
such quantity of silica, and using said locomotives that would
cause and allow large quantities of silica dust containing silica
to be created and come into the cab and be inhaled, yet defendant
negligently failed to warn the plaintiff and negligently failed to
furnish him with a respirator or device to prevent the inhalation
of said silica dust."
[
Footnote 16]
The decision in
Sadowski v. Long Island R. Co., 292
N.Y. 448, 55 N.E.2d 497, sustaining a recovery for silicosis under
the Federal Employers' Liability Act. contained the following
statements, which are relevant to the apparent ruling of the
Missouri Supreme Court with respect to compliance with customary
trade standards:
"Evidence that some railroads furnished no such contrivances as
plaintiff claimed were necessary for the use of men working under
similar conditions or furnished similar places to work for men
doing work similar to that required of plaintiff does not
establish, as matter of law, that no such contrivances or no
different place in which to work or no different appliances to
carry on the work were required in the case at bar in the exercise
of ordinary care. The ultimate question of fact was not what
particular protective means someone else used in similar work. It
was whether or not, under the particular conditions described in
this case, the defendant furnished plaintiff a reasonably safe
place in which to work and such protection in connection with his
work against the inhalation of silica dust as would be expected of
a person in the exercise of ordinary care under those
conditions."
292 N.Y. at 456-457, 55 N.E.2d at 501.
[
Footnote 17]
After quoting petitioner's admission referred to above, the
Missouri Supreme Court's opinion stated:
"The implication from this allegation is that the sanders as
such were not defective, but that the trouble was maladjustment.
Just what was wrong with the adjustment is not alleged, and
plaintiff does not claim that the situation is one for the
res
ipsa loquitur rule."
352 Mo. at 219, 176 S.W.2d at 475.
The inference drawn by the court was, in effect, either a rule
of law that using maladjusted sanders could not be negligence even
though caused, as petitioner expressly alleged, by respondent's
want of due care, or, alternatively a ruling, as matter of law,
that, to constitute a sufficient showing of negligence, the
allegation of maladjustment must specifically state the types and
causes of it. Neither conclusion accords with applicable federal
standards in such cases. If the latter was the court's intention,
the matter was, at most, one for permitting amendment or cure by
proof; if the former, the conclusion ran in the teeth both of
federal and of generally accepted standards for showing
negligence.
[
Footnote 18]
Nor do we find merit in respondent's contention that Urie, prior
to the 1939 amendment abolishing assumption of risk as a defense to
ordinary negligence suits under the Federal Employers' Liability
Act, 45 U.S.C. § 54, 53 Stat. 1404, amending 35 Stat. 66, assumed
the risk of injury. Nothing in Urie's original complaint remotely
suggests such knowledge on his part of the likelihood of
contracting silicosis as would justify the conclusion that Urie
"anticipated and decided to chance the particular risk. . . ."
Owens v. Union Pacific R. Co., 319 U.
S. 715,
319 U. S. 723.
Accordingly, we are not called on to determine whether any
retroactive effect is to be given the 1939 amendment, which this
Court has described as requiring that "cases tried under the
Federal Act . . . be handled as though no doctrine of assumption of
risk had ever existed."
Tiller v. Atlantic Coast Line R.
Co., 318 U. S. 54,
318 U. S. 64.
Specifically we need not consider whether, even assuming the
amendment was not intended to cover injuries accruing before its
enactment but sued on thereafter (an open question in this Court,
see Owens v. Union Pacific R. Co., supra, at
319 U. S.
725), the amendment nonetheless covers injuries which,
like Urie's accrued and were sued on thereafter, but where the
beginning of the alleged assumption of risk may have antedated the
amendment.
[
Footnote 19]
See 42 Cong.Rec. 4265, 4426-4439, 4526-4551, 4755;
H.R.Rep. No. 1386, 60th Cong., 1st Sess., S.Rep. No. 460, 60th
Cong., 1st Sess.
[
Footnote 20]
"The Act is not to be narrowed by refined reasoning. . . . It is
to be construed liberally to fulfill the purposes for which it was
enacted. . . ."
Jamison v. Encarnacion, 281 U.
S. 635,
281 U. S. 640.
Similarly, the Boiler Inspection Act,
"like the Safety Appliance Act, is to be liberally construed in
the light of its prime purpose, the protection of employees and
others by . . . the use of safe equipment."
Lilly v. Grand Trunk Western R. Co., 317 U.
S. 481,
317 U. S.
486.
[
Footnote 21]
See, e.g., Cell v. Yale & Towne Mfg. Co., 281 Mich.
564, 566, 275 N.W. 250;
but cf. id. 281 Mich. at 567-568,
275 N.W. 250.
[
Footnote 22]
Hurle's Case, 217 Mass. 223, 224, 104 N.E. 336, 337;
see Hood & Sons v. Maryland Casualty Co., 206 Mass.
223, 92 N.E. 329;
cf. Gentry v. Swann Chemical Co., 234
Ala. 313, 317 318, 174 So. 530.
See Banks, Employer's
Liability for Occupational Diseases, 16 Rocky Mt.L.Rev. 60,
61-64.
[
Footnote 23]
See, e.g., Jeffreyes v. Charles H. Sager Co., 198
App.Div. 446, 191 N.Y.S. 354,
aff'd, 233 N.Y. 535, 135
N.E. 907;
Iwanicki v. State Industrial Accident
Commission, 104 Or. 650, 205 P. 990. Restrictive constructions
of the term "accident" and its variants have generally been
followed by agitation, now largely successful, for legislation
specifically extending compensation to occupational disease.
See, e.g., Perry, Occupational Disease Legislation, 2
Newark L.Rev. 83; Occupational Disease Compensation, 26
Am.Lab.Leg.Rev. 2; Andrews, The Tragedy of Silicosis,
id.
at 3. For local studies of the problems posed,
see Owens,
Diseases and Injuries to Health under the Wisconsin Workmen's
Compensation Act, 1945 Wis.L.Rev. 357; 3 John Marshall L.Q.
241.
[
Footnote 24]
Claim of Edward Edmonds, June 23, 1913, Opinions of Solicitor,
U.S. Department of Labor (1915) 259.
[
Footnote 25]
Claim of Willard E. Jule, July 28, 1913, Opinions of Solicitor,
U.S. Department of Labor (1915) 261;
cf. Claim of C. M.
Arata, Dec. 31, 1913,
id. at 264 (lead poisoning and
bronchitis).
[
Footnote 26]
Claim of Basil E. Clark, Apr. 11, 1914, Opinions of Solicitor,
U.S. Department of Labor (1915) 270.
[
Footnote 27]
Claim of Edward Devine, Feb. 9, 1915, Opinions of Solicitor,
U.S. Department of Labor (1915) 277. Whether the earlier decision
that pneumonia was not compensable, Claim of John Sheeran, Apr. 25,
1910, 28 Op.Atty.Gen. 254, is consistent with the foregoing cases,
or with cases awarding compensation for "the bends," Claim of Wm.
Murray, Nov. 3, 1911, Opinions of Solicitor, U.S. Department of
Labor (1915) 239, or sunstroke, Claim of J. J. Walsh, Mar. 16,
1911,
id. at 231, we need not determine; Congress'
dissatisfaction with the distinction is clear from the course of
subsequent legislation:
When the Federal Employees' Compensation Act of May 30, 1908,
was superseded in 1916 by the broader and still extant general
federal employee compensation system, 5 U.S.C. § 751
et
seq., the statute as originally enacted provided compensation
for "disability" or "personal injury" without further qualification
or definition. 39 Stat. 742. Proposals specifically to include
occupational disease were rejected, at least in part, for the
reasons that, at the committee hearings,
"there was considerable difficulty in defining the term
'occupational disease,' and it was also called to our attention
that, in quite a number of cases in a number of States, the court
held this language which we have in the bill would cover
occupational diseases in certain cases -- at least a number of
them. . . ."
53 Cong.Rec. 10899. In 1924, the 1916 Act was amended, 43 Stat.
389, "to correct two rulings of the Comptroller General of the
United States. . . ." H.R.Rep. No. 280, 68th Cong., 1st Sess. 1.
One of the rulings remedied was that occupational diseases were not
included within the 1916 Act; the other ruling was that the
Comptroller General had power to review decisions of the United
States Employees' Compensation Commission. As to the first of these
errors, the House Judiciary Committee, in reporting out the 1924
amendment, expressly referred to its 1916 report, H.R.Rep. No. 678,
64th Cong., 1st Sess. 7, to show that, in drafting the 1916 Act,
"the committee intended to remedy the inadequacy of the act of May
30, 1908, with reference to
occupational diseases.'" H.R.Rep.
No. 280, 68th Cong., 1st Sess. 3. See 65 Cong.Rec. 8154.
[
Footnote 28]
45 U.S.C. § 1
et seq.
[
Footnote 29]
See note 4 and
text
[
Footnote 30]
In ordinary negligence claims under the Federal Employers'
Liability Act, contributory negligence, while not a bar to the
action, is available in diminution of damages, 45 U.S.C. § 53, 35
Stat. 66. Assumption of risk was a complete defense to negligence
claims,
Seaboard Air Line Ry. v. Horton, 233 U.
S. 492,
233 U. S. 503;
until its abolition in 1939, 45 U.S.C. § 54, 53 Stat. 1404,
amending 35 Stat. 66.
See Tiller v. Atlantic Coast Line R.
Co., 318 U. S. 54.
The quoted statutory phrase was held to acknowledge creation of
a cause of action "under the Federal Employers' Liability Act" for
personal injury to an employee due to violation of the Safety
Appliance Acts, 45 U.S.C. § 1
et seq., since,
"By the phrase 'any statute enacted for the safety of
employees,' the Congress evidently intended to embrace its Safety
Appliance Acts."
Moore v. Chesapeake & O. R. Co., 291 U.
S. 205,
291 U. S. 210.
Similarly, an employee injury suit alleging violation of the Boiler
Inspection Act is brought "under the Federal Employers' Liability
Act. . . ."
Lilly v. Grand Trunk Western R. Co.,
317 U. S. 481,
317 U. S.
485.
[
Footnote 31]
Respondent places some reliance on the proposition that
congressional limitation of the Boiler Inspection Act to accidental
injury must be inferred from the provision requiring the carrier to
report every locomotive "accident" resulting in "serious injury."
45 U.S.C. § 32. We see no reason to think that a policy requiring
the reporting of all injuries the causes of which are readily
identifiable in terms of time and place compels the conclusion that
other injuries, the origins of which may be remote and ill-defined
at the moment of diagnosis, should not be compensable when the
carrier's underlying responsibility becomes a matter of
demonstrable fact. It is to be noted, furthermore, that an argument
similar to respondent's was rejected with reference to
congressional intent to include occupational diseases in the 1916
Federal Employees' Compensation Act, H.R.Rep. No. 280, 68th Cong.,
1st Sess. 3, and, although advanced with reference to the 1908
Federal Employees' Compensation Act, Claim of A. E. Clark, Dec. 17,
1908, Opinions of Solicitor, U.S. Department of Labor (1915) 188,
190, did not bar compensation of the questionably "accidental"
injuries described in the text at notes 24-27
supra.
[
Footnote 32]
E.g., the requirement for closing "unnecessary or
excessive openings in locomotive cabs," imposed by I.C.C.Rule
116(g), 49 C.F.R. § 91.116(g), after the
Napier decision,
was, as the opinion announcing the rule makes plain, designed to
protect the health of firemen and engineers from wind, snow and
rain.
Wisconsin R. Comm'n v. A. & R.R. Co., 142
I.C.C.199. The rule, not squarely applicable to the present case,
since limited to the winter months, was formulated after extended
hearings in a proceeding in which the Missouri Pacific, like almost
every other major American railroad, was a named party defendant.
Wisconsin R. Comm'n v. A. & R.R. Co., supra,
Transcript of Record, Complaint of Railroad Commission of
Wisconsin, p. 17. In the light of the instant case, it is of
interest to note that the Engineer's Brotherhood and the Firemen's
Brotherhood, interveners in support of the proposed rule, alleged
need for protection from,
inter alia, "excessive . . .
sand and dust storms." Transcript of Record,
supra, Joint
Petition of Intervention of Alvanley Johnston and D. B. Robertson,
p. 3; Amended Joint Petition of Intervention of Alvanley Johnston
and D. B. Robertson, p. 3. No substantial evidence seems to have
been adduced to support the allegation, Transcript of Record,
supra, Brief for Intervening Brotherhoods, pp. 14-15,
although there was evidence of severe winter wind in Missouri,
Transcript of Record,
supra at 2056, and in other parts of
the country,
id. at 2136, 2369, 4541, 5005, 6088, 6350.
The Interstate Commerce Commission noted in its opinion that
"The amendments to rule 116 should be regarded as minimum
requirements which are not intended to take care of the most
extreme conditions."
142 I.C.C.199, 210.
[
Footnote 33]
The only evidence before us is the partial summary of
petitioner's case by the Missouri Supreme Court on the second
appeal:
"Bruce Brill, a witness for plaintiff, testified he had worked
at the Missouri Pacific roundhouse at Joplin for about 18 years and
until November 4, 1942; that the"
"engines that came in . . . I would say most of them -- at least
three out of five -- would have the sanders reported in bad order .
. . maybe it was a broken nipple, something in the dome, or a loose
connection."
"A broken nipple would cause the sand to dribble on to the rails
under the drivers, and the 'speed would suck it up into the cab
after it was ground under the wheels.' The dust would be sucked in
'through the deck and around the boiler head or openings in the
grate shakers.' When the witness cleaned out the cabs, he found
sand particles and roadbed dust. . . . Plaintiff testified the
[sand] dust would"
"come up through the openings in the cab floors, around the
grate shaker riggings and the stoker head in the deck of the engine
on each side of the fire door against the boiler head. . . .
Sometimes there would be wide cracks between the boiler head and
the deck floor where the bolts were broken off and it was worn and
loose. The deck boards would be cracked, and sometimes slivered
out, and it would come through any openings like that; . . . would
collect on the lights; . . . would get our clothing very dusty; . .
. make your mouth and nose very dry."
357 Mo. at 744-745, 210 S.W.2d at 101.
[
Footnote 34]
I.C.C.Rule 120, 49 C.F.R. § 91.120, applicable to steam
locomotives, provides:
"Locomotives shall be equipped with proper sanding apparatus,
which shall be maintained in safe and suitable condition for
service, and tested before each trip. Sand pipes must be securely
fastened in line with the rails."
It is of no consequence that Rule 120 may not have been
specifically called to the jury's attention.
Lilly v. Grand
Trunk Western R. Co., 317 U. S. 481,
317 U. S.
488-489. It is urged upon us that Rule 120 was designed
to insure an adequate auxiliary braking system, rather than to
protect employees against silicosis, and hence that,
notwithstanding respondent's breach of the rule and the governing
statute, petitioner cannot complain of an injury flowing from the
breach which was not the injury the Interstate Commerce Commission
sought to guard against. We do not dispute the narrow scope of Rule
120; nor do we doubt that conventional tort doctrine imposes
absolute liability for violation of a statutory duty only where the
injury is one the statute was designed to prevent.
See, e.g.,
Di Caprio v. New York Central R. Co., 231 N.Y. 94, 131 N.E.
746;
but cf. the remarks of Mr. Justice Brewer in
Atchison, T. & S.F. R. Co. v. Reesman, 60 F. 370, 373.
But we think the liability imposed by the Boiler Inspection Act is
of broader character, and that the correct rule is the one laid
down in
Louisville & N. R. Co. v. Layton, 243 U.
S. 617,
243 U. S. 621,
which this Court has had repeated occasion to apply in connection
with the Safety Appliance Acts:
"The language of the acts and the authorities we have cited make
it entirely clear that the liability in damages to employees for
failure to comply with the law springs from its being made unlawful
to use cars not equipped as required -- not from the position the
employee may be in, or the work which he may be doing at the moment
he is injured. This effect can be given to the acts, and their wise
and humane purpose can be accomplished only by holding, as we do,
that carriers are liable to employees in damages whenever the
failure to obey these Safety Appliance Laws is the proximate cause
of injury to them when engaged in the discharge of duty."
See Davis v. Wolfe, 263 U. S. 239,
263 U. S. 243;
Coray v. Southern Pacific Co., 335 U.
S. 520,
335 U. S.
522-523;
Brady v. Terminal R. Assn. of St.
Louis, 303 U. S. 10,
303 U. S. 16;
Swinson v. Chicago, St. P., M. & O. R. Co.,
294 U. S. 529,
294 U. S. 531;
Fairport, p. & E. R. Co. v. Meredith, 292 U.
S. 589.
Cf. Minneapolis & St. Louis R. Co. v.
Gotschall, 244 U. S. 66;
St. Louis & San Francisco R. Co. v. Conarty,
238 U. S. 243.
MR. JUSTICE FRANKFURTER, concurring in part.
At the risk of wearisome reiteration, it is relevant to say
again that the common law concept of negligence is an antiquated
and uncivilized basis for working out rights and duties for
disabilities and deaths inevitably due to the conduct of modern
industry. In the conscious or unconscious endeavor not to have the
human cost of industry fall with cruel injustice upon workers and
their families, the law of negligence gives rise to endless
casuistry. So long as the gamble of an occasional heavy verdict is
not replaced by the security of a modern system of insurance,
courts must continue to apply the notion of negligence in
situations for which it was never intended. Therefore, if a claim
is made that an injury is causally related to a carrier's failure
to maintain standards of care appropriate for employment on a
railroad, the Federal Employers' Liability Act entitles an employee
to establish that claim to a jury's satisfaction. Damages are
recoverable
Page 337 U. S. 197
under that Act for suffering "injury." That term, it seems to
me, is sufficiently broad to include bodily injury which nowadays
is more specifically characterized as "occupational disease."
Accordingly, I agree that recovery may be had under the Federal
Employers' Liability Act for silicosis, where the facts sustain
such a claim, as is illustrated by the case of
Sadowski v. Long
Island R. Co., 292 N.Y. 448, 55 N.E.2d 497.
On the other hand, I agree with the Missouri Supreme Court that
occupational diseases cannot be fitted into the category of
"accidents" for which the Boiler Inspection Act devised a scheme of
regulation and a basis of liability. 36 Stat. 913, as amended, 45
U.S.C. §§ 22-34. I think I appreciate the humane impulse which
seeks to bring occupational diseases within such a regime. But due
regard for the limits of judicial interpretation precludes such
free-handed application of a statute to situations outside its
language and its purpose. To do so, moreover, is, I believe, a
disservice to the humane ends which are sought to be promoted.
Legislation is needed which will effectively meet the social
obligations which underlie the incidence of occupational disease.
See National Insurance (Industrial Injuries) Act, 1946, 9
& 10 Geo. 6, 488, particularly Part IV. The need for such
legislation becomes obscured, and the drive for it retarded, if
encouragement is given to the thought that there are now adequate
remedies for occupational diseases in callings subject to
Congressional control. The result of the present decision is to
secure for this petitioner the judgment which the jury awarded him.
It does not secure a proper system for dealing with occupational
diseases.
I would reverse this judgment and remand the case to the Supreme
Court of Missouri for proceedings consistent with this opinion.
MR. JUSTICE REED, MR. JUSTICE JACKSON, and MR. JUSTICE BURTON
join in this opinion.