Messrs. John J. McDevitt, Jr., of Philadelphia, Pa., and Frederick S. Tyler, of Washington, D. C., for petitioner.
Mr. Wm. Clarke Mason, of Philadelphia, Pa., for respondent. [258 U.S. 92, 93]
Mr. Justice McREYNOLDS delivered the opinion of the Court.
The petitioner brought an action in the Court of Common Pleas at Philadelphia, alleged that her husband was negligently killed while employed in interstate commerce by the Philadelphia & Reading Railroad, and demanded damages. She claimed under the federal Employers' Liability Act (Comp. St. 8657-8665). Verdict and judgment having been entered for her, an appeal was taken to the Supreme Court of the state, and reversal sought upon several grounds. That court considered only one question-Did decedent's death result from a risk which he assumed as the result of his employment? And, concluding that he had assumed such risk, it reversed the judgment of the trial court, and entered one for respondent non obstante veredicto. 267 Pa. 86, 110 Atl. 254. As found and stated by the Supreme Court, the facts are these: [258 U.S. 92, 94] 'Decedent was a member of a crew which had brought a train from Philadelphia to South Bethlehem. Some of the cars contained goods shipped in interstate commerce. When all the cars were released at their appropriate places, the engine went back to get the caboose for the purpose of taking it to the point where it was to stay until wanted for further traffic, and then itself go to the roundhouse where it was to remain until again needed. This movement was through defendant's yard, where there were a number of tracks upon which cars and locomotives were being shifted constantly. Through the yard ran also the main passenger tracks of defendant, and, at the points where other tracks crossed over or connected therewith, derailing devices had been wisely installed for the purpose of preventing locomotives and cars using the other tracks from running on to or over the passenger tracks, at a time when passenger trains were standing or traveling thereon, and thereby possibly causing collision and serious loss of life.
Accepting the view that the engineer's negligence was the proximate cause of the fatal injury, the court below [258 U.S. 92, 95] held the decedent had assumed the risk of such negligence and the master was not liable, citing among other cases Seaboard Air Line v. Horton, 233 U.S. 492 , 34 Sup. Ct. 635, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. This we think was error.
Seaboard Air Line v. Horton-often followed-ruled that the federal Employers' Liability Act did not wholly abolish the defense of assumption of risk as recognized and applied at common law. But the opinion distinctly states that the first section--
The Second Employers' Liability Cases, 223 U.S. 1, 49 , 32 S. Sup. Ct. 169, 175 (56 L. Ed. 327, 38 L. R. A [N. S.] 44), declared that--
And in Chicago, Rock Island & Pacific Ry. Co. v. Ward, 252 U.S. 18 , 40 Sup. Ct. 275, we said:
In actions under the federal act the doctrine of assumption of risk certainly has no application when the negligence of a fellow servant which the injured party could not have foreseen or expected, is the sole, direct, and immediate cause of the injury. To hold otherwise would conflict with the declaration of Congress that every common carrier by railroad while engaging in interstate commerce shall be liable to the personal representative of any employee killed while employed therein when death results from the negligence of any of the officers, agents or employees of such carriers. [258 U.S. 92, 96] For the reasons indicated, the judgment of the court below must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.