Catherine Schlemmer v. Buffalo, Rochester Pittsburgh Railway Company

• Decision Date: 15 May 1911
• Docket Number: No. 374,374
• Parties: CATHERINE SCHLEMMER, Now Catherine Craig, Plff. in Err., v. BUFFALO, ROCHESTER, & PITTSBURGH RAILWAY COMPANY
• Court: U.S. Supreme Court

220 U.S. 590

31 S.Ct. 561

55 L.Ed. 596

CATHERINE SCHLEMMER, Now Catherine Craig, Plff. in Err.,

v BUFFALO, ROCHESTER, & PITTSBURGH RAILWAY COMPANY.

No. 374.

Argued April 3, 1911.

Decided May 15, 1911.

Messrs. Frederic D. McKenney, John Spalding Flannery, William Hitz, Edward A. Moseley, and A. J. Truitt for plaintiff in error.

Messrs. Marlin E. Olmsted, A. C. Stamm, and John G. Whitmore for defendant in error.

Mr. Justice Day delivered the opinion of the court:

This action was brought in a Pennsylvania court to recover for wrongfully causing the death of Adam M. Schlemmer, plaintiff's intestate, as a result of injuries received while in the employ of the railroad company. The case has been once before in this court, and is reported in 205 U. S. 1, 51 L. ed. 681, 27 Sup. Ct. Rep. 407. The injury was received while Schlemmer, an employee of the defendant railroad company, was endeavoring to couple a shovel car to the caboose of one of the railroad trains of the defendant company.

Before the case first came here, the supreme court of Pennsylvania had held that the plaintiff could not recover damages because of the contributory negligence of the deceased. 207 Pa. 198, 56 Atl. 417. This court reversed the supreme court of Pennsylvania, and remanded the case for further proceedings in conformity with the opinion of this court.

For a proper understanding of the case a brief state- ment of the facts will be necessary. The shovel car was not equipped with an automatic coupler, as required by the act of March 2, 1893, chap. 196, § 2, 27 Stat. at L. 531, U. S. Comp. Stat. 1901, p. 3174, and that fact was the basis of the action for damages. The shovel car had an iron drawbar, weighing somewhere about 80 pounds, protruding beyond the end of the shovel car. The end of this drawbar had a small opening, or eye, into which an iron pin was to be fitted when the coupling was made; this was to be effected by placing the end of the drawbar into the slot of the automatic coupler with which the caboose was equipped. Owing to the difference in the height, the end of the shovel car would pass over the automatic coupler on the caboose in case of an unsuccessful attempt to make the coupling, and the end of the shovel car would come in contact with the end of the caboose.

Plaintiff's intestate was an experienced brakeman, having been in the service fifteen or sixteen years. At the time when he undertook to couple the train with the shovel car to the end of the caboose, he went under the end of the shovel car, and attempted to raise the iron drawbar so as to cause it to fit into the slot of the automatic coupler on the caboose. While so doing, his head was caught between the ends of the shovel car and the caboose, and he was almost instantly killed. This happened between 8 and 9 o'clock on an evening in the month of August, and while dusk had gathered, it was not very dark, and the testimony tends to show that the situation was plainly observable.

When this case was first before the supreme court of Pennsylvania, that court expressed doubt as to whether the act of Congress applied in actions of negligence in the courts of Pennsylvania, and the judgment on the nonsuit in the court below was sustained because of the contributory negligence of the deceased.

This court held that the shovel car was in course of transportation between points of different states, and therefore was being used in interstate commerce; that the shovel car was a car within contemplation of § 2 of the act of Congress; that § 8 of that act had deprived the company of the defense of assumed risk on the part of an employee; that the ruling in the Pennsylvania court upon contributory negligence was so dependent upon an erroneous construction of the statute that it could not stand. 205 U. S. 1, 13, 51 L. ed. 681, 686, 27 Sup. Ct. Rep. 407. As the alleged right to recover was under a Federal statute, alleged to have been improperly construed against the plaintiff in error, the case presented a claim of Federal right, a denial of which was reviewable here, and the case, for the reason stated, was reversed by this court, and sent back for further proceedings in conformity with the opinion of this court.

We find no occasion to depart from the former decision, and will proceed to examine the record as now presented, which, in material respects, differs from the one previously before the court. It is first objected by the plaintiff in error that the supreme court of Pennsylvania remanded the case to the lower court for trial contrary to the mandate sent down upon the reversal by this court. The supreme court of Pennsylvania remitted the case, after receipt of the mandate from this court, to the lower court, to be retried 'on the settled principles of contributory negligence, as heretofore declared in the decisions of this court,'—supreme court of Pennsylvania. The counsel for plaintiff in error moved the supreme court of Pennsylvania to amend its judgment and remittitur so as to conform with the mandate of this court, which motion was overruled.

We are of opinion that the order and remittitur of the supreme court of Pennsylvania, in compliance with the mandate of this court, should have required the further proceedings to conform to the opinion of this court, as its mandate required, and as was within the authority of this court, the matter involved being a right of Federal creation within the ultimate protection of this court.

If an examination of the record indicated that, by reason of this mandate, the subsequent proceedings in the state court had operated to deprive the plaintiff in error of the benefit of a trial under the Federal statute properly construed, we should be constrained to reverse the case. But an examination of the record discloses that the trial judge regarded the decision of this court as settling the right of the plaintiff in error to rely upon the Federal statute in question, and as conclusive of the fact that the shovel car was being employed in interstate commerce at the time of the injury, and was a car within the meaning of the act, and that assumption of risk was no defense to the action. So, it does not appear that the form of mandate sent down by the supreme court of Pennsylvania, after the case was reversed here, worked to the prejudice of the plaintiff in error.

The trial court submitted the case to the jury upon the issues joined under the Federal statute, including the question whether the plaintiff's intestate, at the time of the injury, had been guilty of contributory negligence. Under these instructions the jury found a verdict for the plaintiff.

The court then granted a rule to show cause why judgment should not be rendered non obstante veredicto, which motion was granted, and an opinion delivered, in which the judge held that the testimony did not warrant the conclusion that, in making the coupling, the risk was so obvious that an ordinarily careful and prudent brakeman would not have undertaken it; and therefore, under the statute, assumption of risk was no defense, but reached the conclusion that the deceased was guilty of contributory negligence in failing to exercise care according to the circumstances in making the coupling in the way he attempted to make it, and in not adopting a safer way, which was pointed out to him at the time.

Upon the second appeal, the supreme court of Pennsylvania affirmed the judgment of the trial court, saying:

'Per Curiam: It is the settled law of Pennsylvania that any negligence of a party injured, which contributed to his injury, bars his...