Schlemmer v. Buffalo, Rochester & Pittsburg Railway Co.

Mr. Justice HoCmes

.delivered the opinion of the court.

■ This is an action for the. death, of. the plaintiff’s intestate, Adám 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 Supéreme 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, c. 196, § 2, 27 Stat. 531. Instead of such a Coupler it had an iron drawbar fastened undérneath 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, go that it should enter a slot in an automaticv 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 glowly 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 coupler was not such as was required by existing 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 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 séems to have been no dispute below. The trial court 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 Massachusetts, 404, 408, 409. It was the testimony of the defendant’s -special agent employed to investigate Ihe matter.

The latter question is pretty nearly answered by Johnson v. Southern Pacific Co., 196 U. S. 1, 16. As there observed, “Tested by context, subject matter and object, 'any car’ meant all kinds of cars running on the rails, including locomotives.” “The object was to protect the lives and limbs of railroad employés 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 not be taken in a narrow, sense. • The later act of March 2, 1903, c. 976, 37 Stat. 943, 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. There 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 four-wheel 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 from the requirements of the act. In substance' it merely creates an exception,^ which has been said to be the general, purpose of such clauses. Interstate Commerce Commission v. Baird, 194 U. S. 25, 36, 37. “The general rule of law is, that a proviso carves special'exceptions only out of the body of the act; and those who.set up any such exception must .establish it,” etc. Ryan v. Carter, 93 U. S. 78, 83. United States v. Dixon, 15 Peters; 141, 165. The rule applied to construction is applied equally to the burden of proof in a case like this. United States v. Cook, 17 Wall. 168; Commonwealth v. Hart, 11 Cush. 130, 134.

We come now to the main question. The opinion, of the. .Supreme Court was as follows: “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 bfelow sustained the nonsuit on the ground of the deceased’s contributory negligence and the judgment is affirmed on his opinion on that subject.” It is said that the existence of contributory negligence is not a Federal question and that as the decision went off 'on that ground there is nothing open to revision here.

. We certainly do not mean to qualify dr limit the rule that, for this court to entertain jurisdiction of a writ of error to a 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, January 7, 1907, 204 U. S. 36. 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 & Missi. Canal Co., 142 U. S. 254. 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 & Indianapolis Railroad Co. v. Indiana, 194 U. S. 579. The application of this rather vague principle will appear as we proceed.

It is enacted by § 8- of the act that any employé 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 pase of Farwell v. Boston & Worcester R. R. Co., 4 Met. 49, 57, 58. 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 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.

Assumption of risk in this 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, Oklahoma & Gulf R. R. Co. v. McDade, 191 U. S. 64, 68. 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 éxonerates 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 controvertible' terms. Patterson v. Pittsburg & Connellsrille R. R. Co., 76 Pa. St. 389. 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.

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 decision on the fact of warning alone. Oh the contrary, it began with a statement that an employe takes the risk' even of unusual dangers if he has notice of them and voluntarily exposes himself to them. Then it went on to say that the deceased attempted to make the coupling with the 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.

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 arc clearly of opinion that Schlemmer’s rights were in no way impaired by his getting between the rails and attempting to couple the cars. So far he was saved by thfe 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 situation should not-be impaired by holding the same thing under another name. If a man not intent on suicide but desiring to live, is said to be chargeable with negligence as matter of law when he miscalculates the height of the car behind him by an inch, while his duty requires him, in his crouching position, to direct a heavy drawbar moving above him into a small slot in front, and' this in the dusk, at nearly nine of an August evening, it is utterly impossible for us to interpret this ruling as not, however unconsciously, introducing the notion that to some extent the man bad taken the risk of the danger by being in the place at all. But whatever may have been the meaning of the local courts, we are of opinion that the' possibility of such -a minute miscalculation, under such circumstances, whatever it may be called, was so inevitably and clearly attached to the risk which Schlemmer did not assume, that to enforce the statute requires that the judgment should be reversed.

Judgment reversed.