Seaboard Air Line Railway v. James Horton

Decision Date27 April 1914
Docket NumberNo. 691,691
Citation58 L.Ed. 1062,233 U.S. 492,34 S.Ct. 635
CourtU.S. Supreme Court

Messrs. Benjamin Micou, Murray Allen, Hilary A. Herbert, and Richard P. Whiteley for plaintiff in error.

Messrs. William C. Douglass and Clyde A. Douglass for defendant in error.

[Argument of Counsel from pages 493-495 intentionally omitted] Mr. Justice Pitney delivered the opinion of the court:

Horton sued the Seaboard Air Line Railway in the superior court of Wake county, North Carolina, to recover damages for personal injuries sustained by him while in defendant's employ as a locomotive engineer. The action was brought under the Federal employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322), as amended April 5, 1910 (36 Stat. at L. 291, chap. 143, U. S. Comp. Stat. Supp. 1911, p. 1324). In the complaint it was sufficiently averred that defendant was a corporation operating a line of railway as a common carrier in interstate commerce, and that plaintiff, at the time he was injured, was employed by defendant in such commerce. These facts were not in issue at the trial.

As to the circumstances of the occurrence of the injury, plaintiff's evidence tended to show that on July 27, 1910, defendant's locomotive engine No. 752 was placed in his charge; that it was equipped with a Buckner water gauge, a device attached to the boiler head for the purpose of showing the level of the water in the boiler, and consisting of a brass frame or case inclosing a thin glass tube which communicated with the boiler above and below in such manner that the tube received water and steam direct from the boiler and under the full boiler pressure. In order to shield the engineer from injury in case of the bursting of the tube, a piece of ordinary glass, 2 or 3 inches wide, 8 or 9 inches long, and about half an inch thick, known as a guard glass, should have been provided, this being a part of the regular equipment of the Buckner water gauge. There were slots for receiving the guard glass and holding it in position in front of the water tube. At each end of the tube, valves were provided for the purpose of disconnect- ing it from the boiler. As an alternative but probably less convenient method of determining the level of the water in the boiler, ordinary gauge cocks were provided.

Plaintiff was an experienced locomotive engineer, and, according to his own testimony, was fully aware of the function of the guard glass and of its importance to his safety. He testified that when he took the engine out on his first trip on July 27th, he observed that the guard glass was missing; that on his return upon the following day he reported this to defendant's roundhouse foreman, to whom reports of such defects were properly made, and asked him for a guard glass; that the foreman stated there were none in stock at that place, and it would be necessary to send to a distance to get one; that he would do this, and that plaintiff should meanwhile run the engine without one; and that, having ineffectually endeavored to get a guard glass from another source, plaintiff proceeded to drive the engine with the use of the unguarded water gauge until August 4th, when the glass exploded and flying fragments struck him in the face, causing the injuries upon which his claim for damages was based.

Defendant's evidence tended to show that when the engine was placed in plaintiff's charge on July 27th the water glass was in good condition, with a guard glass in place; that the gauge cocks were likewise in good working order; that it was the duty of a locomotive engineer to inspect his engine and know that it was in proper order before taking it out, and if not in proper order to make a written report to the roundhouse foreman, specifying the defects; that if anything should happen to the water glass it was the engineer's duty to close the valves so as to exclude the steam pressure from it, and run the engine with the gauge cocks, and that these were sufficient for the purpose; and that plaintiff made repeated reports in writing between July 27 and the time of his injury, mentioning other things needed about his engine, but making no mention of the water gauge or the guard glass. The fireman testified specifically that when plaintiff took charge of the engine on the morning of the 27th the water glass had the shield or guard in front of it, but that it was smoky, so that one could not see through it; that he, the fireman, in the presence of plaintiff, removed the guard glass in order to clean it; and that in plaintiff's presence it became broken. The roundhouse foreman specifically denied plaintiff's testimony about the complaint and the promise of reparation.

Under instructions presently to be noticed, the case was submitted to the jury upon three issues, to which responses were made as follows:

(1) Was plaintiff injured by defendant's negligence? Answer, Yes.

(2) If so, did plaintiff assume the risk of injury? Answer, No.

(3) Did plaintiff by his own negligence contribute to his injury? Answer, Yes.

The jury also assessed substantial damages, for which judgment was rendered by the trial court, and upon appeal the supreme court affirmed the judgment (162 N. C. 424, L.R.A.(N.S.) ——78 S. E. 494). The case comes here, under § 237, Judicial Code [36 Stat. at L. 1156, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 227], upon questions arising out of instructions given and refused to be given to the jury as to the nature of the duty of the employer and the rules respecting assumption of risk and contributory negligence under the Federal employers' liability act.

There is a motion to dismiss, upon the ground that no return day is specified in the writ of error or citation. Carroll v. Dorsey (1857) 20 How. 204, 207, 15 L. ed. 803, 804, and Sea v. Connecticut Mut. L. Ins. Co. (1880) 154 U. S. 659, and 25 L. ed. 882, 14 Sup. Ct. Rep. 1191, are relied upon. These decisions were based upon § 22 of the judiciary act of September 24, 1789, 1 Stat. at L. 84, chap. 20, which was held to require a certain return day to be specified in the writ of error. Accordingly, general rule 33, promulgated December terms, 1867 (6 Wall. vi.), afterwards found as clause 5 of rule 8 of the revised rules promulgated January 7, 1884 (108 U. S. 577, 20 L. ed. 902, 3 Sup. Ct. Rep. vii.), required that the writ of error and citation should be returnable on the first day of the term in cases where final judgment was rendered more than thirty days before that day, and on the third Monday of the term in cases where judgment was rendered less than thirty days before the first day. Blatchf, U. S. Ct. Rules 77. But under Blatchf. U. S. Ct. Rules 77. But under (U. S. Comp. Stat. 1901, p. 684), the court, on January 26, 1891, amended clause 5 of rule 8 so as to read: 'All appeals, writs of error, and citations must be made returnable not exceeding thirty days from the day of signing the citation, whether the return day fall in vacation or in term time, and be served before the return day' (137 U. S. 710, 34 L. ed. 1122, 11 Sup. Ct. Rep. iii.). And in the present rule as promulgated December 22, 1911 (222 U. S. p. 14, Appx. 56 L. ed. 1297, 32 Sup. Ct. Rep. vii.), the same language is retained, with an exception extending the time to sixty days in writs of error and appeals from the western states, and Alaska, Hawaii, and Porto Rico, and to 120 days as to the Philippine Islands. An extension of the time in favor of the more distant states and territories was first introduced as clause 3 of original rule 63, promulgated at December term, 1853 (16 How. ix. 14 L. ed. 818), and has been continued, with amendments, until the present time (21 How. viii.; 2 Wall. viii.; 108 U. S. 578, 20 L. ed. 903, 3 Sup. Ct. Rep. viii.). It has, however, no bearing upon the form of the writ or citation, aside from the limit of time that may be allowed between date and return.

The present writ of error and citation were dated the 4th day of August, 1913, and in terms were returnable 'within thirty days from the date hereof.' This form has been usually employed, with the approval of the court, since the amendment of the rule made in 1891, as mentioned. It is a substantial compliance with the present rule, and tends to avoid errors that otherwise might be made in inserting a day certain as a return day.

This motion must therefore be denied.

A second motion to dismiss, based upon grounds still more technical, and which need not be particularly stated, will likewise be denied.

There is a further motion to dismiss for want of jurisdiction, upon the ground that no right, privilege, or immunity under the employers' liability act was especially set up or claimed in the state court of last resort and by that court denied. But since that court sustained the trial court ino overruling certain contentions made by plaintiff in error asserting a construction of the act, which, if acceded to, would presumably have produced a verdict in its favor, and consequent immunity from the action, this motion must be denied, upon the authority of St. Louis, I. M. & S. R. Co. v. McWhirter, 229 U. S. 265, 57 L. ed. 1179, 33 Sup. Ct. Rep. 858.

Coming now to the merits, we need consider only certain assignments of error that are based upon exceptions to the action of the trial judge in giving and refusing to give instructions relating to the issues of defendant's negligence, the assumption of risk, and contributory negligence.

At the outset we observe that the judge evidently misapprehended the effect of the Federal act upon state legislation. Thus, the jury was told that plaintiff had brought the action under the Federal statute; 'And where Congress enacts a law within the limits of its power, that law should be enforced uniformly throughout the entire United States. If it is in conflict with the state law, the state law is...

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