1. Section 54 of the Federal Employers' Liability Act, providing
that an employee of a common carrier shall not be held to have
assumed the risks of his employment
"in any case where the violation by such common carrier of any
statute enacted for the safety of employees contributed to the
injury or death of such employee,"
relates to statutes subjecting carriers in interstate commerce
to particular obligations for the safety of their employees, such
as the Safety Appliance Acts, not to the Federal Employers'
Liability Act itself. P.
305 U. S. 2.
Where such violations are not involved, the defense of
assumption of risk is available in actions under the Federal
Employers' Liability Act. P.
305 U. S. 2.
2. The defense of assumption of risk is for the jury, under
proper instructions, where there is evidence tending to support it.
P.
305 U. S. 3.
105 Mont. 302, 72 P.2d 1007, affirmed in part.
Certiorari, 303 U.S. 632, to review the affirmance of a judgment
against the Railway Company and one of its employees in an action
for personal injuries. The writ of certiorari is dismissed as to
the employee for want of a properly presented federal question.
Page 305 U. S. 2
PER CURIAM.
This action was brought by George Leonidas, an employee of the
Great Northern Railway Company, against that Company and George
Pappas, another of its employees, to recover damages for personal
injuries alleged to have been caused by defendants' negligence. The
complaint set forth two causes of action, but, at the trial,
plaintiff elected to stand upon the second cause of action, which
was based upon the Federal Employers' Liability Act, 45 U.S.C.
§§ 51-59. Defendants' motion for the direction of a
verdict in their favor was denied, and the jury found for the
plaintiff. The Supreme Court of the State affirmed the judgment.
105 Mont. 302, 72 P.2d 1007.
After ruling that, upon the evidence, the question of
plaintiff's assumption of risk was one of the jury, the court
stated as a further ground for affirming the judgment that the
defense of assumption of risk was not available under the federal
statute. The court pointed to the provision (§ 54) that an
employee of the common carrier shall not be held to have assumed
the risks of his employment
"in any case where the violation by such common carrier of any
statute enacted for the safety of employees contributed to the
injury or death of such employee."
The court ruled that the Federal Employers' Liability Act was
one intended to promote the safety of employees, and hence that the
defense of assumption of risk was barred.
This ruling was error. The provision of § 54 relates to
such statutes as the Safety Appliance Acts (March 2, 1893, c.196,
27 Stat. 531; March 2, 1903, c. 976, 32 Stat. 943; April 14, 1910,
c. 160, 36 Stat. 298; February 17, 1911, c. 103, 36 Stat. 913); the
Hours of Service Act (March 4, 1907, c. 2939, 34 Stat. 1415), and
other statutes subjecting carriers in interstate commerce to
particular obligations for the safety of their employees.
Seaboard Air Line Railway v. Horton, 233 U.
S. 492,
233 U. S. 503;
Jacobs v.
Page 305 U. S. 4
Southern Railway Co., 241 U. S. 229,
241 U. S.
235-236. Where such violations are not involved, the
defense of assumption of risk is available in actions under the
Federal Employers' Liability Act.
Seaboard Air Line Railway v.
Horton, supra; Jacobs v. Southern Railway Company, supra; Atchison,
T. & S.F. Ry. Co. v. Swearingen, 239 U.
S. 339,
239 U. S. 344;
Baugham v. New York, P. & N. R. Co., 241 U.
S. 237,
241 U. S. 241;
Chicago, R.I. & P. Ry. Co. v. Ward, 252 U. S.
18,
252 U. S.
21.
Despite this erroneous ruling, we are of the opinion that the
judgment should be affirmed upon the first ground taken by the
state court -- that is, that the question of assumption of risk was
for the jury. It is not contended that the instructions of the
trial court upon that defense were erroneous. The contention is
that there was no evidence to go to the jury. We think that there
was.
The judgment is affirmed with respect to the petitioner Great
Northern Railway Company. As to the petitioner George Pappas, the
writ of certiorari is dismissed upon the ground that the federal
question as to the right of recovery under the Act against him
individually, as distinguished from the Railway Company, was not
properly presented.
Affirmed in part, dismissed in part.
MR. JUSTICE BLACK is of the opinion that the writ of certiorari
should be dismissed as to both petitioners.
