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[233 U.S. 42, 43] Mr. George W. Kretzinger, Jr., for plaintiff in error.
[233 U.S. 42, 44] Mr. James C. McShane for defendant in error.
Mr. Chief Justice White delivered the opinion of the court:
The right of the plaintiff, who is defendant in error here, to recover for an alleged personal injury, was stated in two counts. In both, the wrong was alleged to have been occasioned by the negligence of the railway company, while it was engaged in carrying on interstate commerce, and while the plaintiff was employed by it in such commerce. In the first count, however, the act of Congress known as the safety appliance act [27 Stat. at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174] was expressly declared on. For the purposes of the writ of error which was prosecuted by the railroad company from the circuit court of appeals, numerous assignments of error were made and were all disposed of by the court in a full opinion. 120 C. C. A. 166, 201 Fed. 836. In view of the complexion of the case as here presented we need address ourselves to only one of such assignments, and to state the facts only so far as essential to its consideration.
The proof showed that the plaintiff was one of a crew working a switch engine, and that in a yard near Chicago such engine, coupled with four loaded freight cars, moving [233 U.S. 42, 45] in interstate commerce, were held in order to make a coupling with a number of other loaded freight cars moving in interstate commerce, to the end that an interstate train bound eastward might be made up and depart. When by impact it was attempted to make the coupling, the cars failed to couple automatically, and after several efforts to cause them to do so, the plaintiff as switchman walked along beside the end of the car as it approached again the point of coupling, signaled to the engineer to stand fast, and entered between the cars for the purpose of ascertaining and remedying if possible the cause of the trouble. While between the cars and engaged in handling the coupler, the cars were pushed up and he was caught and his arm crushed. There was some proof tending to show that the switchman stepped in before the moving cars had entirely stopped, and some that he gave a signal to come ahead as he stepped in; but there was evidence tending to show to the contrary, and to support the inference that the act of the engineer in moving up was the result of a signal with a lantern, for it was dark, mistakenly given by some other employee in the vicinity, or a mistake of the engineer in misconceiving the movement of a lantern in the hands of some of those who were standing around. There was evidence tending to show that the coupler had been inspected shortly before the accident and no defect was observed by the inspector, but it was shown without dispute that it was defective at the time of the accident, and would not couple automatically because of a bent pin.
Among the errors assigned in the court below was the refusal of the trial court to give an instruction relating to the action of the switchman in entering between the cars and his supposed giving of the comeahead signal. This instruction, while leaving to the jury the determination of whether the switchman, in going between the cars to examine the coupling mechanism, gave a come-ahead signal, [233 U.S. 42, 46] nevertheless asked the court to instruct as a matter of law that if he had done so, his act was the proximate cause of his injury, and therefore he could not recover. Instead of giving this instruction the court modified it by leaving it to the jury to determine whether, under all the circumstances, the action of the switchman had been reasonably careful. The court, in its general charge on this subject, said:
The court below disposed of the refusal of the trial court to charge as a matter of law that there was no right to recover if the proof showed that the switchman had given the 'come-ahead' signal, upon the ground that there [233 U.S. 42, 47] was no foundation for giving it, as there was no evidence whatever tending to show that such signal was given by the switchman. A petition for rehearing was, however, granted, and after a reargument, the particular objection concerning the charge referred to, as well as other matters, was disposed of in an additional opinion. As to the charge referred to, the court held that a mistake had been committed in the first opinion in saying that there was not any evidence tending to show that the switchman had given the 'come-ahead' signal as he entered, and therefore the ground upon which the previous ruling had been based was inadequate. It was nevertheless held that the ruling as previously made was right, because the request to charge as a matter of law that the plaintiff was not entitled to recover if it was found that he had given the 'come-ahead' signal as he entered to examine the mechanism was incompatible with the rule of comparative negligence established by the employers' liability act . [35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 911, p. 1322]. On this subject the court said:
As in the argument at bar reliance is solely placed, except in one particular, upon error which is assumed to have arisen from the refusal of the trial court to give the charge previously referred to, and the judgment of the court [233 U.S. 42, 48] below in approving this action of the trial court upon the theory that it was right in view of the provisions of the employers' liability act, we come to consider this subject.
(a) In the trial court it is insisted the operation and effect of the employers' liability act upon the rights of the parties was not involved because that act was not in express terms referred to in the pleadings or pressed at the trial, and was hence not considered by the court in acting upon the requested charge, and therefore, it is urged, it was error in the reviewing court to test the correctness of the ruling of the trial court by the provisions of the employers' liability act instead of confining the subject exclusively to the safety appliance law and the rules of the common law governing negligence. But the want of foundation for this contention becomes apparent when it is considered that in the complaint it was expressly alleged and in the proof it was clearly established that the injury complained of was suffered in the course of the operation of interstate commerce, thus bringing the case within the employers' liability act. It is true that to avoid the irresistible consequences arising from this situation it is insisted in argument that as no express claim was made under the employers' liability act, therefore there was no right in the plaintiff to avail of the benefits of its provisions, or in the court to apply them to the case before it. But this simply amounts to saying that the employers' liability act may not be applied to a situation which is within its provisions unless in express terms the provisions of the act be formally invoked. Aside from its manifest unsoundness, considered as an original proposition, the contention is not open, as it was expressly foreclosed in Seaboard Air Line R. Co. v. Duvall, 225 U.S. 477, 482 , 56 S. L. ed. 1171, 1174, 32 Sup. Ct. Rep. 790.
(b) Coming to consider the proposition that although the case be governed by the employers' liability act error [233 U.S. 42, 49] was nevertheless committed in sustaining the action of the trial court in refusing to give the requested instruction, we think that even if, for the sake of the argument, it be assumed that the proof brought the case within the principle of comparative negligence established by the employers' liability act, the correctness of the ruling of the court below is clearly made manifest by the reasoning given by the court for its conclusion. But having regard to the state of the proof as to the defect in the coupling mechanism, its failure to automatically work by impact after several efforts to bring about that result, all of which preceded the act of the switchman in going between the cars, in the view most favorable to the railroad, the case was one of concurring negligence; that is, was one where the injury complained of was caused both by the failure of the railway company to comply with the safety appliance act and by the contributing negligence of the switchman in going between the cars. Under this condition of things it is manifest that the charge of the court was greatly more favorable to the defendant company than was authorized by the statute for the following reasons: Although by the 3d section of the employers' liability act a recovery is not prevented in a case of contributory negligence, since the statute substitutes for it a system of comparative negligence, whereby the damages are to be diminished in the proportion which his negligence bears to the combined negligence of himself and the carrier,-in other words, the carrier is to be exonerated from a proportional part of the damages corresponding to the amount of negligence attributable to the employee (Norfolk & W. R. Co. v. Earnest, 229 U.S. 114, 122 , 57 S. L. ed. 1096, 1101, 33 Sup. Ct. Rep. 654),- nevertheless, under the terms of a proviso to the section, contributory negligence on the part of the employee does not operate even to diminish the recovery where the injury has been occasioned in part by the failure of the carrier to comply with the exactions of an act of Congress [233 U.S. 42, 50] enacted to promote the safety of employees. In that contingency the statute abolishes the defense of contributory negligence, not only as a bar to recovery, but for all purposes. The proviso reads:
The only other objection pressed in the argument at bar concerns an instruction asked and refused by the trial court with reference to the weight to be attributed to the testimony of a car inspector who inspected the coupler in question before the accident. The subject of this asserted error was evidently carefully considered by the trial court and was adversely disposed of by the court below, both in its original and in the opinion on the rehearing. Under these circumstances, without going into detail, in view of the doctrine to be applied to cases of this character as announced in Chicago Junction R. Co. v. King, 222 U.S. 222 , 56 L. ed. 173, 32 Sup. Ct. Rep. 79; Chicago, R. I. & P. R. Co. v. Brown, 229 U.S. 317 , 57 L. ed. 1204, 33 Sup. Ct. Rep. 840, 3 N. C. C. A. 826, we are of the opinion that we need do no more than say that after a careful examination of the subject, we are of the opinion that no reversible error was committed by the court below, and its judgment is therefore affirmed.
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