Washington Terminal Co. v. Sampson

• Decision Date: 07 May 1923
• Docket Number: 3805.
• Citation: 289 F. 577
• Parties: WASHINGTON TERMINAL CO. v. SAMPSON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

289 F. 577

WASHINGTON TERMINAL CO. v. SAMPSON.

No. 3805.

United States Court of Appeals, District of Columbia.

May 7, 1923

Submitted November 7, 1922.

George E. Hamilton, John J. Hamilton, and George E. Hamilton, Jr. all of Washington, D.C., for plaintiff in error.

A. L Newmeyer and M. W. King, both of Washington, D.C., for defendant in error.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and BARBER Judge of the United States Court of Customs Appeals.

BARBER Acting Associate Justice.

This case comes here on a writ of error to the municipal court for the District of Columbia, in which Sampson, the plaintiff below, defendant in error here, recovered judgment on the verdict of a jury in his favor against the Washington Terminal Company, a common carrier by railroad in the District.

The main question at issue is whether or not the defense known as assumption of risk is available in this case. The discussion, therefore, is first directed to the question as to whether the statute commonly known as the federal Employers' Liability Act of June 11, 1906 (34 Stat. 232), or the federal Employers' Liability Act of April 22, 1908 (Comp. St. Secs. 8657-8665), is the statute in force, and under which recovery may be had, if at all, in this suit; the Terminal Company contending that the latter and not the former act controls.

The earlier act relates to common carriers in the District of Columbia and elsewhere, while the later one relates to liability of common carriers by railroad. By the former the defense of assumption of risk in cases of the character now before us was abolished. Philadelphia B. & W.R. Co. v. Tucker, 35 App.D.C. 123, affirmed 220 U.S. 608, 31 Sup.Ct. 725, 55 L.Ed. 607. Under the later statute that defense was not abolished, except in the cases especially referred to in section 4 thereof (Comp. St. Sec. 8660). Seaboard Air Line v. Horton, 233 U.S. 492, 34 Sup.Ct. 635, 58 L.Ed. 1062; L.R.A. 1915C, 1, Ann. Cas. 1915B, 475; Jacobs v. S.R. Co., 241 U.S. 229, 36 Sup.Ct. 588, 60 L.Ed. 970.

The act of 1906 was held unconstitutional so far as it related to interstate commerce. Employers' Liability Cases, 207 U.S. 463, 28 Sup.Ct. 141, 52 L.Ed. 297. Later it was held that, as related to common carriers within the District of Columbia, it was constitutional as a regulation of commerce in the District because of the plenary powers of Congress over the District. El Paso & N.E.R. Co. v. Gutierrez, 215 U.S. 87, 30 Sup.Ct. 21, 54 L.Ed. 106. Appellee contends it is still in force here, and that therefore the defense of assumption of risk was not open to the defendant below.

It is unnecessary to enter into any lengthy discussion as to precisely how far the act of 1908 repealed the act of 1906; that it did repeal it was the opinion of the Supreme Court of the state of Washington, although that precise question, as appellee points out, was not directly before the court for consideration. Walsh v. Alaska Steamship Co., 101 Wash. 295, 172 P. 267. See, also, Roberts on Federal Liability of Carriers, 979.

We think, in view of the fact that the two acts treat of the same subject-matter, namely, the liability of common carriers, the former relating to common carriers of every description and the latter to common carriers by railroad, that the later act was designed at least to provide an exclusive remedy against common carriers of the latter class. This view is confirmed by the provision of the last section of the act of 1908 that it should not affect any proceeding or right of action under the earlier act. If Congress had intended that the act of 1906 as to common carriers by railroad was to be continued in force, that saving provision would have been unnecessary, and in addition it is hardly to be supposed that it intended that the two acts providing for relief in the same class of cases, one allowing the defense of assumption of risk and the other not, should concurrently be in force and effect.

The act of 1908 is the latest expression of legislative will, and no good reason presents itself why the Terminal Company, a common carrier by railroad, is not entitled to the benefits thereof. Under section 4 of the act, in cases where the facts justify it, the defense of assumption of risk by the employee may be invoked by the employer, unless it is excluded by the terms of the section. Seaboard Air Line Co. v. Horton, supra. It is not claimed in this case that it is so excluded. The court in the trial below proceeded upon the theory that the defense of assumption of risk was not in the case; hence it is necessary to inquire whether the facts justify that defense, and, if so, was it properly interposed?

The defendant below introduced no evidence in its behalf tending to dispute that of plaintiff. Sampson testified that he had been employed by the company since 1917, some of the time as an extra car inspector, air brake inspector, and repair man; that at the time of the accident he was employed as an icer, his duties being to supply ice to water coolers on railroad cars in the terminal yard here. For that purpose he carried ice in buckets (presumably of metal) furnished by the company. August 8, 1921, he went to his work about 11 p.m., and found three ice buckets which had been left by the prior shift. Each bucket had a capacity of from 15 to 20 pounds of ice and was carried by means of a bail or handle. He selected what he thought was the best one of the three-- to use his language, 'the one least out of repair and that leaked the least. ' The bucket was offered in evidence and showed jagged pieces near the outer rim, worn and torn from position.

He iced one car and as he was leaving it with some 12 or 14 pounds of ice in the bucket which he was carrying with his left arm through the handle, steadied by his left hand on the bucket rim, a jagged or torn piece of the bucket caught in the side of the car, the ice slid down, he reached over with his right...