The Employers' Liability Act abrogated the common law fellow
servant rule by placing negligence of a coemployee upon the same
basis as negligence of the employer.
In saving the defense of assumption of risk in cases other than
those where the carrier's violation of a statute enacted for the
safety of employees contributed to the injury or death, the
Employers' Liability Act places a coemployee's negligence, where it
is the ground of the action, in the same relation as the employer's
own negligence would stand to the question whether a plaintiff is
to be deemed to have assumed the risk.
A railroad employee having voluntarily entered an employment
requiring him on proper occasions to board a moving train assumes
the risk normally incident thereto other than such risk as may
arise from the failure of the engineer to use due care to operate
the train at a moderate rate of speed so as to enable his co
employee to board it without undue peril.
Such an employee may presume the engineer will exercise due care
for his safety, and does not assume the risk attributable to
operation at unduly high speed until made aware of danger unless
the undue
Page 241 U. S. 311
speed and consequent danger are so obvious that an ordinarily
careful person in his situation would observe the speed and
appreciate the danger.
An employee is not bound to exercise care to discover
extraordinary dangers arising from the negligence of the employer
or of those for whose conduct the employer is responsible, but may
assume that the employer or his agents have exercised proper care
with respect to his safety until notified to the contrary, unless
the want of care and the danger are so obvious that an ordinarily
careful person under the circumstances would observe and appreciate
them. Where an action under the Employers' Liability Act is tried
in a state court, local rules of practice and procedure are
applicable, and if the state appellate court holds that the trial
court failed to follow such a rule relating to an instruction, but
affirmed on the ground that there was no question for the jury
respecting the question on which the instruction was asked, and in
fact there was such a question, it is incumbent on this Court to
review such decision.
159 Ky. 687 reversed.
The facts, which involve the validity of a judgment in an action
in the state court for personal injuries under the Employers'
Liability Act, are stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
In this action, which was brought in a state court under the
Federal Employers' Liability Act of April 22, 1908 (c. 149, 35
Stat. 65), the following facts appeared or might reasonably be
inferred from the evidence most favorable to defendant in error
(plaintiff below), in the light of which the initial question
touching the validity of the judgment in his favor must be
determined:
On January 22, 1911, plaintiff was in the employ of defendant
and acting as head brakeman on train No. 95 -- a fast westbound
interstate freight train. When the
Page 241 U. S. 312
train reached a station called Springdale, about six miles east
of Maysville, in Kentucky, the train engineer directed plaintiff to
go to a nearby railway telephone, call up the operator, and
ascertain the whereabouts of train No. 1, which was a fast
west-bound passenger train, the object being to determine whether
it was safe for No. 95 to proceed to Maysville ahead of it.
Plaintiff was unable to understand the operator, and so reported to
the engineer. He then got into the cab of the locomotive, and the
train proceeded to the coal docks, about one mile east of Maysville
and about 460 yards east of a telegraph station in a signal tower
known as the F. G. Cabin, where it stopped for coal and water.
Plaintiff was directed by the engineer to go forward to F. G. Cabin
and ascertain from the operator the whereabouts of train No. 1.
Plaintiff went to the tower, and was there advised that his train
had time to reach Maysville. He immediately descended to the
platform in front of the tower and beside the track, and saw that
his train was approaching. He waited for it, and when it reached
the platform, he attempted to board the engine. He could not
accurately judge the speed of the train, but it appeared to him to
be going slowly enough for him to get aboard it. He caught hold of
the grab iron and put one foot on the step, and then the speed of
the train, combined with his weight, caused his foot to slip and
loosened his hold, so that he fell beneath the wheels of the tender
and his arm was cut off. He had been employed as brakeman for about
six weeks, and before that had made two round trips over the road
for the purpose of becoming acquainted with his duties. During the
time of his employment, he had frequently been called upon, under
orders of the train engineer, to leave the train and go forward to
signal towers for orders or information, and then mount the train
as it came moving by. On the occasion of the accident, the train
was running about twelve miles per hour.
Page 241 U. S. 313
The case went to the jury under instructions making defendant's
liability dependent upon whether the engineer, with knowledge of
plaintiff's presence at the telegraph tower upon business connected
with the operation of the train, and with knowledge of his purpose
to board the train, negligently operated the train at such a rate
of speed as to make plaintiff's attempt to board it unusually
hazardous. There was a verdict for plaintiff, and the resulting
judgment was affirmed by the Court of Appeals of Kentucky. 159 Ky.
687.
Upon the present writ of error, it is not disputed that there
was sufficient evidence of the negligence of the engineer to
require the submission of the case to the jury. It is argued that
there was no substantial evidence to support the conclusion that
such negligence was the proximate cause of the injury; but this is
so clearly untenable as to require no discussion. The remaining
questions turn upon the application of the law respecting
assumption of risk.
It is insisted that, even conceding the train was operated at a
negligent rate of speed in view of plaintiff's purpose to board it,
yet he assumed the risk of injury involved in the attempt. The act
of Congress, by making the carrier liable for an employee's injury
"resulting in whole or in part from the negligence of any of the
officers, agents, or employees" of the carrier, abrogated the
common law rule known as the fellow servant doctrine by placing the
negligence of a coemployee upon the same basis as the negligence of
the employer. At the same time, in saving the defense of assumption
of risk in cases other than those where the violation by the
carrier of a statute enacted for the safety of employees may
contribute to the injury or death of an employee (
Seaboard Air
Line v. Horton, 233 U. S. 492,
233 U. S.
502), the act placed a coemployee's negligence, where it
is the ground of the action, in the same relation as the employer's
own negligence would stand
Page 241 U. S. 314
to the question whether a plaintiff is to be deemed to have
assumed the risk.
On the facts of the case before us, therefore, plaintiff, having
voluntarily entered into an employment that required him on proper
occasion to board a moving train, he assumed the risk of injury
normally incident to that operation other than such as might arise
from the failure of the locomotive engineer to operate the train
with due care to maintain a moderate rate of speed in order to
enable plaintiff to board it without undue peril to himself. But
plaintiff had the right to presume that the engineer would exercise
reasonable care for his safety, and cannot be held to have assumed
the risk attributable to the operation of the train at an unusually
high and dangerous rate of speed until made aware of the danger,
unless the speed and the consequent danger were so obvious that an
ordinarily careful person in his situation would have observed the
one and appreciated the other.
Gila Valley Ry. Co. v.
Hall, 232 U. S. 94,
232 U. S. 101;
Seaboard Air Line v. Horton, 233 U.
S. 492,
233 U. S.
504.
It is argued that, so far as the question of assumed risks is
concerned, it makes no difference, in the case of a brakeman about
to board a moving train, whether it is operated at a low or at a
high rate of speed; that, if the train is moving slowly, the risk
is an ordinary one, incident to the business of railroading, while
if it is moving rapidly, the risk is open, obvious, and apparent.
Were we to consider only extreme cases such as were instanced in
argument, the point might be conceded -- that is, that mounting a
train operated at one mile per hour is an ordinary risk, while
mounting a train operated at fifty miles per hour presents a risk
which, although extraordinary, is open, obvious, and apparent. But
these extremes do not present an apt illustration. A speed very
much below fifty miles would endanger the brakeman's safety, at the
same time being much less apparent. If those operating the
train
Page 241 U. S. 315
in question knew that plaintiff intended to board it at that
point, and the verdict is to that effect, the jury was warranted in
finding that plaintiff had a right to expect that the train would
be moving at a moderate rate of speed such as would enable an
ordinarily careful brakeman to get on with reasonable safety, and
this upon the ground that, as head brakeman, plaintiff had the
right -- indeed, that it was his duty -- to get upon the engine,
since otherwise the train would be left without a head brakeman and
the engineer without the information required for the safe
operation of the train, and that plaintiff had no notice nor any
opportunity to determine with reasonable certainty what the speed
of the train was, or that it was too great for his safety, until
the engine had practically reached him. It cannot be said as matter
of law that a speed of twelve miles per hour would necessarily be
obvious to him as a dangerous speed before he made the attempt to
board the train.
It is insisted that the true test is not whether the employee
did in fact know the speed of the train and appreciate the danger,
but whether he ought to have known and comprehended -- whether, in
effect, he ought to have anticipated and taken precautions to
discover the danger. This is inconsistent with the rule repeatedly
laid down and uniformly adhered to by this Court. According to our
decisions, the settled rule is not that it is the duty of an
employee to exercise care to discover extraordinary dangers that
may arise from the negligence of the employer or of those for whose
conduct the employer is responsible, but that the employee may
assume that the employer or his agents have exercised proper care
with respect to his safety until notified to the contrary, unless
the want of care and the danger arising from it are so obvious that
an ordinarily careful person, under the circumstances, would
observe and appreciate them.
Gila Valley Ry. Co. v. Hall,
Seaboard Air Line v. Horton, ubi supra.
Page 241 U. S. 316
We conclude that there was no error in refusing to peremptorily
instruct the jury to return a verdict in favor of defendant.
Error is assigned to the refusal of the trial court to instruct
the jury as follows: that, when plaintiff entered defendant's
service as brakeman, he assumed all the ordinary risks and hazards
of that employment, and if the jury should believe from the
evidence that his injuries were the natural and direct result of
any of such risks or hazards, they must find for the defendant. The
instruction thus requested was defective, and there was no error in
refusing to give it in this form, since it embodied no definition
of "ordinary risks and hazards," nor any qualification appropriate
to the particular facts of the case. The gravamen of plaintiff's
complaint, as developed at the trial, and the sole theory upon
which the case was submitted to the jury, was that the negligence
of the engineer in operating the train at an unduly high rate of
speed created an unusual and extraordinary hazard. An instruction
upon the question of assumption of risk, dealing solely with the
ordinary hazards of the employment and not pointing out that a
different rule must be applied with respect to an extraordinary
risk attributable to the engineer's negligence, would probably have
confused and misled the jury.
But it appears that, in Kentucky, there is an established rule
of practice that, if instructions are offered upon any issue
respecting which the jury should be instructed, but they are
incorrect in form or substance, it is the duty of the trial court
to prepare or direct the preparation of a proper instruction upon
the point in the place of the defective ones.
Louisville &
Nash. R. Co. v. Harrod, 115 Ky. 877, 882;
West Kentucky
Coal Co. v. Davis, 138 Ky. 667, 674;
Louisville, H. &
St.L. Ry. Co. v. Roberts, 144 Ky. 820, 824.
Although the present action was based upon a federal
Page 241 U. S. 317
statute, it was triable and tried in a state court; hence, local
rules of practice and procedure were applicable.
Central
Vermont Ry. Co. v. White, 238 U. S. 507,
238 U. S. 511;
Minneapolis & St.L. R. Co. v. Bombolis, this day
decided,
ante, p.
241
U. S. 211. The Kentucky Court of Appeals assumed for the
purposes of the decision that the case was one where the trial
court ought to have followed the local practice, and prepared or
directed the preparation of a proper instruction covering the
question of assumption of risk, and it sustained the judgment only
upon the ground that there was no question for the jury respecting
it. Whether there was is a question of law, and of course, in this
case, a federal question, and since the Court of Appeals assumed to
decide it, it is incumbent upon us to review the decision.
North Carolina R. Co. v. Zachary, 233
U. S. 248,
233 U. S.
257.
We are unable to concur in the view that there was no question
for the jury. Whether the risk was an extraordinary risk depended
upon whether the speed of the train was greater than plaintiff
reasonably might have anticipated, and this rested upon the same
considerations that were determinative of the question of the
engineer's negligence. If the jury should find, as in fact they did
find, that the speed of the train was unduly great, so that the
risk of boarding the engine was an extraordinary risk, the question
whether plaintiff assumed it then depended upon whether he was
aware that the speed was excessive, and appreciated the
extraordinary danger; or, if not, then upon whether the undue speed
and the consequent danger to him were so obvious that an ordinarily
prudent person in his situation would have realized and appreciated
them. The Court of Appeals reasoned that plaintiff's duties
required him to be upon the passing train; that, if he failed to
board it, he would be left behind; that he had a right to assume
the engineer would run the train at a speed that would enable him
to get on in safety;
Page 241 U. S. 318
that he was facing the train, which was going directly toward
him; that, as a matter of common knowledge, one standing in that
position cannot form an accurate judgment of its speed until it
comes quite near to him, and that his opportunity to observe the
speed was limited to the brief space of time that elapsed between
the passing of the front end of the engine and the cab, where it
was his purpose to get on, and the court determined that, under
such circumstances,
"it is well nigh impossible to tell the difference between a
rate of from four to six miles an hour, when an ordinarily prudent
brakeman might get on with reasonable safety, and a rate of from
ten to twelve miles an hour, when it would be dangerous for him to
do so,"
and that
"all the circumstances tend to show that knowledge of the speed
of the train came to him so suddenly and unexpectedly that he did
not have an opportunity to realize and appreciate the danger of
getting on."
Conceding the force of the reasoning, we are bound to say that,
in our opinion, it cannot be said as matter of law to be so
incontrovertible that reasonable minds might not differ about the
conclusion that should be reached. We therefore hold that the
question of assumption of risk was one proper for submission to the
jury, and, assuming, as the court assumed, that the local practice
required the preparation of a proper instruction covering the topic
in the place of the defective instruction that was offered, there
was error in affirming the judgment of the trial court.
Judgment reversed and the cause remanded for further
proceedings not inconsistent with this opinion.
MR. JUSTICE McKENNA and MR. JUSTICE HOLMES dissent.