[241 U.S. 261, 262] Messrs. Benjamin D. Warfield. John B. Rodes, and James C. Sims for the Louisville & Nashville Railroad Company.
Messrs. George H. Lamar. D. W. Wright, C. U. McElroy, and B. F. Procter for Jeanette Stewart, administratrix.
Mr. Justice Holmes delivered the opinion of the court:
This is an action brought under the employers' liability act of April 22, 1908, chap. 149, 35 Stat. at L. 65, Comp. Stat. 1913, 8657, against the railroad company for negligently causing the death of the plaintiff's intestate, her husband. There were two trials. A verdict and judgment for the plaintiff at the first were set aside by the court of appeals. 156 Ky. 550, 161 S. W. 557; 157 Ky. 642, 163 S. W. 755. A judgment for a less amount at the second trial was sustained. 163 Ky. 823, 174 S. W. 744. The railroad company seeks to overthrow the last judgment; the plaintiff, by her cross writ, seeks to reinstate the first; but, failing that, contends that the last should be affirmed; denying, that is, that there are any grounds for the railroad company's writ.
The object of the plaintiff's writ of error was to go behind the second trial and reinstate state the first judgment. But the verdict was found upon an instruction that the jury should find, if anything, 'such a sum as will fairly compensate his estate for his death,'-given, it would seem, in forgetfulness that the case arose under the act of Congress. See 157 Ky. 642. This instruction was excepted to, and neither justice nor law would permit the verdict and judgment based upon it to be reinstated after the state court had set it aside. We therefore examine the arguments in 904 no farther, and do not cosider whether if, in our opinion, there had been no error of Federal law at the first trial, the plaintiff could have had the relief that she asks. Fairfax v. Hunter, 7 Cranch, [241 U.S. 261, 263] 603, 628, 3 L. ed. 453, 461; Jones Nat. Bank v. Yates, 240 U.S. 541, 563 , 60 S. L. ed. -, 36 Sup. Ct. Rep. 429.
The railroad company had for its principal object in bringing the case here to set up the 7th Amendment, and to deny jurisdiction in any state court where a verdict of nine or more out of the twelve men on the jury was allowed by the local law. The notion that a substantive right vesting under the law of one jurisdiction cannot be recognized and enforced in another, at least, as between the United States and a state, unless by procedure identical with that of the first, is disposed of in Minneapolis & St. L. R. Co. v. Bombolis [ 241 U.S. 211 , 60 L. ed. --, 36 Sup. Ct. Rep. 595].
The first of the other objections is that the court of appeals was not authorized to add 10 per cent damages on the amount of the judgment, as it did. But the railroad company obtained a supersedeas, and the law of the state makes 10 per cent the cost of it to all persons if the judgment is affirmed. There was no obligation upon the state to provide for a suspension of the judgment, and nothing to prevent its making it costly in cases where ultimately the judgment is upheld. So, the state may allow interest upon a judgment from the time when it is rendered, if it provides appellate proceedings and the judgment is affirmed, as, but for such proceedings, interest would run as of course until the judgment was paid.
The railroad company contends at some length that the case should have been taken from the jury by the direction of a verdict in its favor. As the opinion of both courts below and the jury were against it, and as we agree with their judgment, we shall not discuss this assignment of error at length. Great Northern R. Co. v. Knapp, 240 U.S. 464, 466 , 60 S. L. ed. --, 36 Sup. Ct. Rep. 399. The facts were these: Stewart, the deceased, was engineer on a north-bound freight train upon a single track, that had to go upon a siding to make way for a south-bound freight train. There were cars already on the siding which Stewart's train pushed ahead, and this [241 U.S. 261, 264] train and the cars more than filled the siding. Therefore they pushed forward onto the main track to the rear of the south-bound train, and the latter went on its way. It still, however, was necessary to keep the main track clear for another south-bound train, and therefore Stewart's train began to back so as to free the main track north of the switch, which would be the first point reached by the expected train. While it was backing and approaching the southerly end of the switch, the rear brakeman suddenly applied the air brakes, and the sudden shock caused the engineer to strike his head against the cab, by reason of which he died. The conductor in charge of the movement testified that he intended not to cross the southerly point of the switch, and it could be found that the brakeman's act was a breach of duty, that it manifestly would cause a sudden shock, and that, although the particular position of, or specific damage to, Stewart, was unknown to the brakeman, generically it was the kind of thing that was likely to happen, and that he and his employers were liable for consequences of that sort. The jurt was instructed that Stewart assumed the risks incident to his employment, and that, if the application of the air brakes was made upon a reasonable belief that it was necessary to apply them in order to avoid injury to property, they should find for the defendant unless they found that the emergency was brought about by the defendant's servants in the negligent operation of the train before the brakes were applied. As an abstract proposition the qualification was correct, and the jury might have found that the conductor did not manage the train with due care, and so made the application necessary. Whatever might have been our opinion had we been in the jury's place, we do not feel warranted in saying that they had no evidence to go upon, or that the instructions were wrong.