(205 U. S. 1) CATHERINE SCHLEMMER, Plff. in Err. | Moseley, and A. J. Truitt for plaintiff in V. BUFFALO, ROCHESTER, & PITTSBURG Error to state court-Federal question-decision on non-Federal ground. 1. A state court, by deciding that a railway employee who was killed while attempting to make a coupling with a car not equipped with an automatic coupler, as required by the act of March 2, 1893 (27 Stat. at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174), § 2, was, as a matter of law, guilty of contributory negligence in lifting his head a little too high after he had been warned of the danger, cannot defeat the appellate jurisdiction of the Federal Supreme Court, where § 8 of that statute was specially invoked as excluding the defense of assumption of risk. Master and servant-duty as to appliancesautomatic coupler. 2. A shovel car is a "car" within the meaning of the act of March 2, 1893, § 2, requiring any car used in moving interstate traffic to be equipped with an automatic coupler. Evidence-burden of proof. 3. The burden of proof is upon a carrier to bring itself within the exception in favor of four-wheeled cars which is made by the proviso in § 6 of the automatic coupler act of March 2, 1893.* Master and servant-assumption of riskcoupler act-contributory automatic negligence. 4. The possibility that a railway employee, while attempting to make a coupling with a car not equipped with an automatic coupler, as required by the act of March 2, 1893, § 2, might miscalculate the height to which he might safely raise his head, is so inevitably and clearly attached to the risk which, under § 8 of that statute, he does not assume, as to prevent a court from holding, as a matter of law, that he was guilty of contributory negligence which would defeat any recovery in lifting his head a little too high after being warned of the danger.t [No. 41.] error. Messrs. Marlin E. Olmsted, C. H. McCauley, and A. C. Stamm for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is an action for the death of the plaintiff's intestate, Adam M. Schlemmer, while trying to couple a shovel car to a caboose. A nonsuit was directed at the trial and the direction was sustained by the supreme court of the state. The shovel car was part of a train on its way through Pennsylvania from a point in New York, and was not equipped with an automatic coupler in accordance with the act of March 2, 1893, chap. 196, § 2, 27 Stat. at L. 531, U. S. Comp. Stat. 1901, p. 3174. Instead of such a coupler it had an iron drawbar fastened underneath the car by a pin and projecting about a foot beyond the car. drawbar weighed about 80 pounds and its free end played up and down. On this end was an eye, and the coupling had to be done by lifting the free end possibly a foot, so that it should enter a slot in an automatic coupler on the caboose and allow a pin to drop through the eye. Owing to the ab This sence of buffers on the shovel car and to its being so high that it would pass over those on the caboose, the car and caboose would crush anyone between them if they came together and the coupling failed to be made. Schlemmer was ordered to make the coupling as the train was slowly approaching the caboose. To do so he had to get between the cars, keeping below the level of the bottom of the shovel car. It was dusk, and in endeavoring to obey the order and to guide the drawbar he rose a very little too high, and, as he failed to hit the slot, the top of his head was crushed. The plaintiff, in her declaration, alleged that the defendant was transporting the shovel car from state to state, and that the Argued January 18, 21, 1907. Decided March coupler was not such as was required by ex IN 4, 1907. 'N ERROR to the Supreme Court of the State of Pennsylvania to review a judgment which affirmed a judgment of the Court of Common Pleas for the County of Jefferson, in that state, granting a nonsuit in an action for the death of a railway employee who was killed while attempting to make a coupling with a car not equipped with an automatic coupler. Reversed. See same case below, 207 Pa. 198, 56 Atl. 417. The facts are stated in the opinion. Messrs. Luther M. Walter (by special leave), Frederic D. McKenney, Edward A. isting laws. At the trial special attention was called to the United States statute as part of the plaintiff's case. The court having directed a nonsuit with leave to the plaintiff to move to take it off, a motion was made on the ground, among others, "that under the United States statute, specially pleaded in this case, the decedent was not deemed to have assumed the risk, owing to the fact that the car was not equipped with an automatic coupler." The question thus | raised was dealt with by the court in overruling the motion. Exceptions were allowed and an appeal taken. Among the errors assigned was one "in holding that the shovel car was not a car used in interstate •Ed. Note.-For cases in point, ses vol. 34, Cent. Dig. Master and Servant, §§ 899–903. Ed Note-For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 755. 8 408 commerce or any other kind of traffic,"the words of the court below. The supreme court affirmed the judgment in words that we shall quote. We are of opinion that the plaintiff's rights were saved and that we have jurisdiction of the case, subject to certain matters that we shall discuss. On the merits there are two lesser questions to be disposed of before we come to the main one. A doubt is suggested whether the shovel car was in course of transportation between points in different states, and also an argument is made that it was not a car within the contemplation of § 2. On the former matter there seems to have The trial court been no dispute below. states the fact as shown by the evidence, and testimony that the car was coming from Limestone, New York, is set forth, which, although based on the report of others, was evidence, at least, unless objected to as hearsay. Damon v. Carrol, 163 Mass. 404, 408, 409, 40 N. E. 185. It was the testimony of the defendant's special agent employed to investigate the matter. from the requirements of the act. In sub- We come now to the main question. The opinion of the supreme court was as fol. lows: "Whether the act of Congress* . has any applicability at all in actions for negligence in the courts of Pennsylvania is a question that does not arise in this case, and we therefore express no opinion upon it. The learned judge below sustained the The latter question is pretty nearly an- nonsuit on the ground of the deceased's swered by Johnson v. Southern P. Co. 196 contributory negligence, and the judgment U. S. 1, 16, 49 L. ed. 363, 368, 25 Sup. Ct. is affirmed on his opinion on that subject." Rep. 158, 161. As there observed: "Tested [207 Pa. 202, 56 Atl. 419.] It is said that by context, subject-matter, and object, ‘any the existence of contributory negligence is car' meant all kinds of cars running on the not a Federal question, and that, as the The decision went off on that ground, there is rails, including locomotives. object was to protect the lives and limbs nothing open to revision here. of railroad employees by rendering it unnecessary for a man operating the couplers to go between the ends of the cars." These considerations apply to shovel cars as well as to locomotives, and show that the words "used in moving interstate traffic" should The later not be taken in a narrow sense. act of March 2, 1903, chap. 976, 32 Stat. at L. 943, U. S. Comp. Stat. Supp. 1905, p. 603, enacting that the provision shall be held to apply to all cars and similar vehicles, may be used as an argument on either side; but, in our opinion, indicates the intent of the original act. 196 U. S. 21, 49 There L. ed. 371, 25 Sup. Ct. Rep. 158. was an error on this point in the decision below. A faint suggestion was made that the proviso in § 6 of the act, that nothing in it shall apply to trains composed of fourwheel cars, was not negatived by the plaintiff. The fair inference from the evidence is that this was an unusually large car of the ordinary pattern. But, further, if the defendant wished to rely upon this proviso, the burden was upon it to bring itself within the exception. The word "provided" is used in our legislation for many other purposes beside that of expressing a condition. The only condition expressed by this clause is that four-wheeled cars shall be excepted We certainly do not mean to qualify or limit the rule that, for this court to entertain jurisdiction of a writ of error to & state court, it must appear affirmatively that the state court could not have reached its judgment without tacitly, if not expressly, deciding the Federal matter. Bachtel v. Wilson (Jan. 7, 1907) 204 U. S. 36, 51 L. ed. 357, 27 Sup. Ct. Rep. 243. But, on the other hand, if the question is duly raised and the judgment necessarily, or, by what appears, in fact involves such a decision, then this court will take jurisdiction, although the opinion below says nothing about it. Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L ed. 1004, 12 Sup. Ct. Rep. 173. And if it is evident that a ruling purporting to deal only with local law has for its premise or necessary concomitant a cognizable mistake, that may be sufficient to warrant a review. Terre Haute & I. R. Co. v. Indiana, 194 U. S. 579, 48 L. ed. 1124, 24 Sup. Ct. Rep. 767. The application of this rather vague principle will appear as we proceed. It is enacted by 8 8 of the act that any employee injured by any car in use contrary to the provisions of the act shall not be deemed to have assumed the risk thereby occasioned, although continuing in the em ployment of the carrier after the unlawful ล use had been brought to his knowledge. An, charging him with assumption of the risk early, if not the earliest, application of the under another name. Especially is this phrase "assumption of risk" was the es- true in Pennsylvania, where some cases, at tablishment of the exception to the liability least, seem to have treated assumption of of a master for the negligence of his serv-risk and negligence as convertible terms. ant when the person injured was a fellow Patterson v. Pittsburg & C. R. Co. 76 Pa. servant of the negligent man. Whether an 389, 18 Am. Rep. 412. We cannot help actual assumption by contract was sup- thinking that this has happened in the presposed on grounds of economic theory, or ent case, as well as that the ruling upon the assumption was imputed because of a Schlemmer's negligence was so involved with conception of justice and convenience, does and dependent upon erroneous views of the not matter for the present purpose. Both statute that if the judgment stood the statreasons are suggested in the well-known case ute would suffer a wound. of Farwell v. Boston & W. R. Corp. 4 Met. 49, 57, 58, 38 Am. Dec. 339. But, at the present time, the motion is not confined to risks of such negligence. It is extended, as in this statute it plainly is extended, to dangerous conditions, as of machinery, premises, and the like, which the injured party understood and appreciated when he submitted his person to them. In this class of cases the risk is said to be assumed because a person who freely and voluntarily encounters it has only himself to thank if harm comes, on a general principle of our law. Probably the modification of this general principle by some judicial decisions and by statutes like § 8 is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist. To recur for a moment to the facts: The only ground, if any, on which Schlemmer could be charged with negligence, is that when he was between the tracks he was twice warned by the yard conductor to keep his head down. It is true that he had a stick, which the rules of the company required to be used in coupling, but it could not have been used in this case, or at least the contrary could not be and was not assumed for the purpose of directing a nonsuit. It was necessary for him to get between the rails and under the shovel car as he did, and his orders contemplated that he should do so. But the opinion of the trial judge, to which, as has been seen, the supreme court refers, did not put the deci sion on the fact of warning alone. On the contrary, it began with a statement that an employee takes the risk even of unusual dan exposes himself to them. Then it went on to say that the deceased attempted to make the coupling with a full knowledge of the danger, and to imply that the defendant was guilty of no negligence in using the arrangement which it used. It then decided in terms that the shovel car was not a car within the meaning of § 2. Only after these preliminaries did it say that, were the law otherwise, the deceased was guilty of contributory negligence; leaving it somewhat uncertain what the negligence was. Assumption of risk in this broad sense ob-gers if he has notice of them and voluntarily viously shades into negligence as commonly understood. Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. He is held to assume the risk upon the same ground. Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 68, 48 L. ed. 96, 100, 24 Sup. Ct. Rep. 24. Apart from the notion of contract, rather shadowy as applied to this broad form of the latter conception, the practical difference of the two ideas is in the degree of their proximity to the particular harm. The preliminary conduct of getting into the dangerous employment or relation is said to be acting between the rails and attempting to companied by assumption of the risk. The act more immediately leading to a specific accident is called negligent. But the difference between the two is one of degree rather than of kind; and when a statute exonerates a servant from the former, if at the same time it leaves the defense of contributory negligence still open to the master (a matter upon which we express no opinion), then, unless great care be taken, the servant's rights will be sacrified by simply It seems to us not extravagant to say that the final ruling was so implicated with the earlier errors that on that ground alone the judgment should not be allowed to stand. We are clearly of opinion that Schlemmer's rights were in no way impaired by his get couple the cars. So far he was saved by the provision that he did not assume the risk. The negligence, if any, came later. We doubt if this was the opinion of the court below. But suppose the nonsuit has been put clearly and in terms on Schlemmer's raising his head too high after he had been warned. Still we could not avoid dealing with the case, because it still would be our duty to see that his privilege against being held to have assumed the risk of the situa tion should not be impaired by holding the | in consequence thereof, there is no setting same thing under another name. If a man aside of the ordinary rules relating to connot intent on suicide, but desiring to live, tributory negligence, which is available as is said to be chargeable with negligence as a defense, notwithstanding the statute, unmatter of law when he miscalculates the less that statute is so worded as to leave height of the car behind him by an inch, no doubt that this defense is also to be exwhile his duty requires him, in his crouching cluded. Taylor v. Carew Mfg. Co. 143 Mass. position, to direct a heavy drawbar moving 470, 10 N. E. 308; Krause v. Morgan, 53 about him into a small slot in front, and this Ohio St. 26, 40 N. E. 886; East Tennessee, in the dusk, at nearly nine of an August V. & G. R. Co. v. Rush, 15 Lea, 145, 150; evening, it is utterly impossible for us to in- Queen v. Dayton Coal & I. Co. 95 Tenn. 458, terpret this ruling as not, however uncon- 30 L.R.A. 82, 49 Am. St. Rep. 935, 32 S. W. sciously, introducing the notion that to some 460; Reynolds v. Hindman, 32 Iowa, 146; extent the man had taken the risk of the Caswell v. Worth, 5 El. & Bl. 849; Buckner v. danger by being in the place at all. But Richmond & D. R. Co. 72 Miss. 873, 18 So. whatever may have been the meaning of the 449; Victor Coal Co. v. Muir, 20 Colo. 320, local courts, we are of opinion that the pos- 26 L.R.A. 435, 46 Am. St. Rep. 299, 38 Pac. sibility of such a minute miscalculation, un- 378; Holum v. Chicago, M. & St. P. R. Co. der such circumstances, whatever it may be 80 Wis. 299, 50 N. W. 99; Kilpatrick v. called, was so inevitably and clearly at- Grand Trunk R. Co. 74 Vt. 288, 93 Am. St. tached to the risk which Schlemmer did not Rep. 887, 52 Atl. 531; Denver & R. G. R. assume, that to enforce the statute requires Co. v. Arrighi, 63 C. C. A. 649, 129 Fed. that the judgment should be reversed. 347; Winkler v.*Philadelphia & R. R. Co. 4 Penn. (Del.) 80, 53 Atl. 90. The Interstate Commerce Commission held this to be the rule in reference to this particula statute. 14 Ann. Rep. 1900, p. 84. Indeed, it is not contended by the majority that the defense of contributory negligence has been taken away. Judgment reversed. Mr. Justice Brewer, dissenting: I dissent from the opinion and judgment in this case and for these reasons: This was an action in the common pleas court of Jefferson county, Pennsylvania, to recover damages on account of the death of the husband of plaintiff. On the trial the court ordered a nonsuit on the ground of contributory negligence on the part of the decedent, with leave to the plaintiff to move to take the same off. This motion was made and overruled; judgment for the defendant was entered, which was affirmed by the supreme court of the state. The decedent was killed while attempting to couple a steam shovel to a caboose. The steam shovel was being moved in interstate transportation, and was not equipped with the safety coupler required by act of Congress of March 2, 1893. 27 Stat. at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3176. The 8th section of that act provides: "That any employee of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge." Thus, while removing from the employee the burden of any assumption of risk, does not relieve him from liability for contributory negligence. For the rule is well set tled that while, in cases of this nature, a violation of the statutory obligation of the employer is negligence per se, and actionable if injuries are sustained by servants | That there is a vital difference between assumption of risk and contributory negligence is clear. As said by this court in Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 68, 48 L. ed. 96, 100, 24 Sup. Ct. Rep. 24, 25: "The question of assumption of risk is quite apart from that of contributory negligence." See also Union P. R. Co. v. O'Brien, 161 U. S. 451, 456, 40 L. ed. 766, 770, 16 Sup. Ct. Rep. 618. This proposi tion, however, is so familiar and elementary that citation of authorities is superfluous. In the motion for a nonsvit the second proposition was that "the evidence upon behalf of plaintiff proves conclusively that the accident happened because the deceased failed to keep his head at least as low as the floor of the steam shovel, that this omission was the fault of the deceased exclusively, and that deceased was guilty of contributory negligence and there can be no recovery in this case." In ordering the nonsuit the trial court said: "True, under said act he was not considered to have assumed the risks of his employment, but by this is certainly meant no more than such risks as he was exposed to thereby, and resulted in injury free from his own negligent act. It would hardly be argued that defendant would be liable, under such circumstances, were the employee to voluntarily inflict an injury upon himself by means of the use of the improperly equipped car. And yet it is but a step from contributory negligence to such an act. "It seems very clear to us that, whatever view we may take of this case, we are led to the legal conclusion that decedent was guilty of negligence that contributed to his death, and that the plaintiff, however deserving she may be, or however much we regret the unfortunate accident, cannot recover." The supreme court affirmed the judgment in the following per curiam opinion: "Whether the act of Congress appear that its decision was one necessarily in conflict therewith, and not that possibly or even probably it was." Before, then, we can disturb this judgment of the supreme court of Pennsylvania, it must (paraphrasing the language just quoted a little) be made to appear that its decision of the question of contributory negligence was one necessarily in disregard of the testimony and not that possibly or even probably it was. It cannot be said that there was no evidence of negligence on the part of the dein cedent. The plaintiff's testimony (and the regard to the use of automatic couplings defendant offered none) showed that de on cars employed in interstate commerce ceased was an experienced brakeman; that has any applicability at all in actions for the link and pin coupling was in constant negligence in the courts of Pennsylvania is use on other than passenger coaches; that bea question that does not arise in this case, fore the deceased went under the car the and we therefore express no opinion upon it. pin had already been set; that, as he was The learned judge below sustained the non-going under the car, he was twice notified suit on the ground of the deceased's con- to be careful and keep his head down, and tributory negligence, and the judgment is yet, without any necessity therefor being affirmed on his opinion on that subject." shown, he lifted his head and it was crushed [207 Pa. 202, 56 Atl. 419.] between the two cars; that all he had to do was to guide the free end of the drawbar into the slot, and while the drawbar weighed 75 to 80 pounds, it was fastened at one end, and the lifting and guiding was only of the other and loose end; that the drawheads were of the standard height and the body of the shovel car higher than that of the caboose. Immediately thereafter the coupling was made by another brakeman without difficulty. If an iron is dangerously hot, and one knows that it is hot and is warned not to touch it, and does touch it without any necessity therefor being shown, and is thereby burned, it is trifling to say that there is no evidence of negligence. That contributory negligence is a nonFederal question is not doubted, and that when a state court decides a case upon grounds which are non-Federal and sufficient to sustain the decision this court has no jurisdiction is conceded. While sometimes negligence is a mixed question of law and fact, yet, in the present case, whether the decedent, in attempting to make the coupling after the warning given by the conductor, lifted his head unnecessarily and negligently, is solely a question of fact, and, in cases coming on error from the judgment of a state court, the findings of that court on questions of fact have always been held conclusive on us. See Chrisman v. Miller, 197 U. S. 313, 319, 49 L. ed. 770, 772, 25 Sup. Ct. Rep. 468, and the many cases cited in the opinion. It would seem from this brief statement that the case ought to be dismissed for lack of jurisdiction. Escape from this conclusion can only be accomplished in one of these ways: By investigation of the testimony and holding that there was no proof of contributory negligence. If the case came from one of the lower Federal courts we might properly consider whether there was sufficient evidence of contributory negligence; but, as shown above, a very different rule obtains in respect to cases coming from a state court. We said this very term, in Bachtel v. Wilson, 204 U. S. 36, 40, ante, 243, 245, 27 Sup. Ct. Rep. 243, 245, in reference to a case coming from a state court to this: "Before we can pronounce its judgment in conflict with the Federal Constitution it must be made to Or we may hold that the Pennsylvania courts intentionally, wrongfully, and without any evidence thereof, found that there avoid the binding force of the Federal law. was contributory negligence in order to During the course of the argument, in response to an interrogation, counsel for plaintiff in error bluntly charged that upon those courts. Of course this court always speaks in respectful terms of the decisions it reviews, but the implication of the most courteous language may be as certain as a direct charge. It is intimated that the Pennsylvania |