Lyon v. Charleston & Western Carolina Ry.

While there was testimony tending to show that the plaintiff was negligent, it likewise tended to prove negligence on the part of the defendant in several particulars.

The testimony was susceptible of more than one inference; therefore, it cannot be said that the negligence of the plaintiff was the proximate cause of his injury, and the inference to be drawn from the testimony was properly submitted to the jury, especially when it appeared that the plaintiff did not have time for deliberation in executing the order to uncouple the cars.

But there is even a stronger reason why the question of contributory negligence on the part of the plaintiff was properly submitted to the jury.

This was an interstate commerce train, and the construction of the statute mentioned in the complaint, involves a Federal question, in which case, this Court is bound to follow the decisions of the United States Supreme Court.

There is no difference in principle between the present case and that of Schlemmer v. R.R., 27 Sup. Ct. Rep. 407, from which we quote at length, as it is decisive of the question under consideration. The facts in that case were as follows: "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 it was not equipped with an automatic coupler, in accordance with the act of March 2, 1893, chap. 196, sec. 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. This drawbar weighed about eighty 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 absence 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 any one 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."

In reversing the decision of the State Court, the United States Supreme Court used this language: "It is enacted by section 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 employment of the carrier after the unlawful use had been brought to his knowledge. An early, if not the earliest, application of the phrase ``assumption of risk' was the establishment of the exception to the liability of a master, for the negligence of his servant, when the person injured was a fellow servant of the negligent man. Whether an actual assumption by contract was supposed on grounds of economic theory, or the assumption was imputed because of a conception of justice and convenience, does not matter for the present purpose. Both reasons are suggested in the well known case of Farewell v. Boston W.R. Corp., 4 Met., 49, 57, 58, 38 Am. Dec., 339. But at the present time, the notion 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 frankly and voluntarily encounters it, has only himself to thank if harm comes, on a general principle of law. Probably the modification of this general principle by some judicial decisions and by statutes like section 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.

"Assumption of risk in a broad sense obviously 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 accompanied 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 sacrificed, by simply charging him with assumption of the risk under another name. Especially is this true in Pennsylvania, where some cases, at least, seem to have treated assumption of risk and negligence as convertible terms,Patterson v. Pittsburg C.R. Co., 76 Pa., 389, 18 Am.Rep., 412. We cannot help thinking that this has happened in the present case, as well as that the ruling upon Schlemmer's negligence, was so involved with, and dependent upon erroneous views of the statute, that if the judgment stood the statute would suffer a wound."

This decision shows that the United States Supreme Court regards as "shadowy" the distinction between the assumption of risk, and contributory negligence, and that it will not allow the provisions of the statute to be abrogated by a mere change of name, in the designation of the defense.

But even if these defenses must be regarded as distinct, the same result should follow in this case.

In critically reviewing the case of Schlemmer v. R.R.,supra, the Central Law Journal (3 May, 1907), thus clearly points out the distinction generally recognized, between assumption of risk and contributory negligence.

"One has to do with the contract between master and servant, the other with the latter's own deliberate act and judgment independent of any contract requirement of the master. If a master tells a servant to do such and such a thing, and the servant sees the danger, or knows the defects of the appliances used, and the liability he is incurring, his undertaking to comply with his master's wishes is an assumption of the risks involved. It may be negligence on his part to do what he is doing, but it is negligence assumed by contract with his master, and of which his master has or ought to have knowledge. On the other hand, where a servant in the course of his employment does an act not demanded or called for by his master, and especially against the doing of which he is warned, and such act is clearly an act of negligence, the commission of such an act on his part amounts to contributory negligence, and is effective as a complete defense to a defendant in an action for damages."

Tested even by this distinction, the question whether the plaintiff assumed the risk, or was guilty of contributory negligence was, in this case, proper for the jury.

For these reasons I dissent.