APPEAL from the Court of Claims to re

on the word "cause." The argument is that view a judgment allowing a clerk of a the word "cause" is limited by the word Federal court separate docket fees for sepa-indictment, and if it be returned against a rate trials under one indictment, and disal- number of persons and they be granted sepalowing a counterclaim for charges paid for rate trials there is only one "cause." It recording abstracts of judgments. Affirmed. is conceded that the court may grant sepa

The facts are stated in the opinion. rate trials, and it is not disputed that the

Assistant Attorney General Van Orsdel court did so in the case for which the serve and Mr. Philip M. Ashford for appellant. ices sued for were charged and that each Mr. Frank B. Crosthwaite for appellee. was separately designated on the records.

We think the order granting separate Mr. Justice McKenna delivered the opin- trials made separate causes, and therefore ion of the court:

each was independent of the other. State The claimant in the court below, appellee v. Rogers, 6 Baxt. 563; Noland v. State, 19 here, was clerk of the United States cir- Ohio, 131; Bryan v. Spivey, 106 N. C. 95, cuit court for the southern district of West 11 S. E. 510. The services rendered were a Virginia from July 1 to July 6, 1902, and proper charge under the statute. clerk of that court and the district court 2. The counterclaim was for the recovery from July 16, 1902, to September 17, 1904. of $57.90, charges made for "docketing judg. He regularly rendered accounts for such ments,” and the lists filed showed amounts services, which contained, among other from $0.15 to $8.70. The court of claims' things, charges for "separate docket fees in comment was: “The defendant's counterseparate trials under one indictment.” The claim, predicated upon the alleged illegal charges were disallowed and this suit was allowance for the docketing of judgments, brought therefor in the court of claims. will have to be dismissed. The services here Judgment was rendered for claimant for the charged for were admittedly performed, by sum of $125.45, certain items being disal- order of the court, and, under United States lowed.

v. Jones, 193 U. S. 528, 48 L. ed. 776, 24 A counterclaim was filed by the United Sup. Ct. Rep. 561, allowable.” States for the recovery of $57.90, charged for The case referred to is United States v. “docketing judgments," alleged to have been Jones, supra. In the absence of anything erroneously and unlawfully paid to claim in the record to the contrary, we must asant by the accounting officers of the United sume that the application of that case was States. The counterclaim was disallowed made on account of the facts presented to and the United States assigns as error the the court of claims in this. Counsel for action of the court in rendering judgment the United States say that the findings of for the claimant as aforesaid and overruling the court of claims “on the subject of the the counterclaim. In passing on the charge counterclaim are not as full and complete for the service the court of claims said: as they might be." A belief is expressed,

“The defendant's contention as to item 6 however, that it appears, from the face of is troublesome. It appears that joint in the counterclaim, that they are folio fees. dictments were returned against several de At all events, it is insisted, that they are fendants; that on motion of defendants' not the charges specified in paragraphs 10, counsel separate trials were granted to some 11, and 12 of § 828 of the Revised Statutes. of the defendants, whereupon the clerk made This the appellee concedes in effect, and separate docket entries in accordance with urges that the charge was made under and said motion, docketing said causes as is justified by paragraph 8 of that section, though separate indictments had been re- which reads as follows: "For entering any turned against the parties granted separate rule, order, continuance, judgment, decree, trials.

or recognizance, or drawing any bond or “Paragraph 10 of § 828 of the Revised making any record, certificate, return, or Statutes (U. S. Comp. Stat. 1901, p. 635) report, for each folio, fifteen cents.” The provides :

words we have italicized are the words upon “For making dockets and indexes, issu- which appellee relies, combined with the ing venire, tax costs, and all other services following order of the court: on the trial or argument of a cause where “The clerk of this court is directed to keep issue is joined and testimony given, three a judgment docket wherein shall be recorded dollars.'

abstracts of all judgments rendered in cases "By paragraph 11 a fee of $2 is allowed wherein the United States is a party. Said where no testimony is given, and by para- judgment docket shall contain: graph 12 a fee of $1 is allowed where the “The number of the case. cause is dismissed or discontinued or judg. “The date of the indictment. ment or decree rendered without issue." “The names of the parties.

The contention of the appellant turns up- "The amount of the judgment.

“The amount of costs.

dockets which are kept in all United States “The date of the judgment.

courts in which brief entries of fact are “When docketed.

made, and which, it is said, are covered by “The amount paid.

the docket fee. The contention is consonant “The disposition of the funds and any ad- with the decision of the court of claims, and ditional matter which the clerk may deem we do not think it is refuted by the sugpertinent.”

gestions made by appellant. The record required by that rule, appel- Judgment affirmed. lee contends, is different from the various

v.

CATHERINE SCHLEMMER, Plff. in Err. | Moseley, and A. J. Truitt for plaintiff in

error. BUFFALO, ROCHESTER, & PITTSBURG Messrs. Marlin E. Olmsted, C. H. McRAILWAY COMPANY.

Cauley, and A. C. Stamm for defendant in

error. Error to state court-Federal question-decision on non-Federal ground. 1. A state court, by deciding that a

Mr. Justice Holmes delivered the opinrailway employce who was killed while at-ion of the court: tempting to make a coupling with a car not

This is an action for the death of the equipped with an automatic coupler, as re- plaintiff's intestate, Adam M. Schlemmer, quired by the act of March 2, 1893 (27 Stat. while trying to couple a shovel car to a caat L. 531, chap. 196, U. S. Comp. Stat. 1901, boose. A nonsuit was directed at the trial p. 3174), § 2, was, as a matter of law, and the direction was sustained by the suguilty of contributory negligence in lifting his head a little too high after he had been preme court of the state. The shovel car warned of the danger, cannot defeat the ap

was part of a train on its way through pellate jurisdiction of the Federal Supreme Pennsylvania from a point in New York, and Court, where § 8 of that statute was special. was not equipped with an automatic couply invoked as excluding the defense of as- ler in accordance with the act of March 2, sumption of risk.

1893, chap. 196, § 2, 27 Stat. at L. 531, U. Master and servant-duty as to appliances, S. Comp. Stat. 1901, p. 3174. Instead of automatic coupler. 2. A shovel car is a "car” within the tened underneath the car by a pin and pro

such a coupler it had an iron drawbar fasmeaning of the act of March 2, 1893, § 2, requiring any car used in moving interstate jecting about a foot beyond the car. This traffic to be equipped with an automatic drawbar weighed about 80 pounds and its coupler.

free end played up and down. On this end

. Evidence-burden of proof.

was an eye, and the coupling had to be done 3. The burden of proof is upon a carrier by lifting the free end possibly a foot, so to bring itself within the exception in favor that it should enter a slot in an automatic of four-wheeled cars which is made by the coupler on the caboose and allow a pin to proviso in § 6 of the automatic coupler act drop through the eye. Owing to the abof March 2, 1893.*

sence of buffers on the shovel car and to its Master and servant-assumption of risk- being so high that it would pass over those automatic coupler act — contributory

on the caboose, the car and caboose would negligence. 4. The possibility that a railway em

crush anyone between them if they came ployee, while attempting to make a coupling together and the coupling failed to be made. with a car not equipped with an automatic Schlemmer was ordered to make the coupcoupler, as required by the act of March 2, ling as the train was slowly approaching 1893, § 2, might miscalculate the height to the caboose. To do so he had to get bewhich he might safely raise his head, is so

tween the cars, keeping below the level of inevitably and clearly attached to the risk the bottom of the shovel car. which, under § 8 of that statute, he does and in endeavoring to obey the order and to

It was dusk, not assume, as to prevent a court from holding, as a matter of law, that he was guilty guide the drawbar he rose a very little too of contributory negligence which would de- high, and, as he failed to hit the slot, the feat any recovery in lifting his head a little top of his head was crushed. too high after being warned of the danger. The plaintiff, in her declaration, alleged

that the defendant was transporting the [No. 41.]

shovel car from state to state, and that the Argued January 18, 21, 1907. Decided March coupler was not such as was required by ex

,
4, 1907.

isting laws. At the trial special attention

was called to the United States statute as N ERROR to the Supreme Court of the part of the plaintiff's case. The court hav

ing directed a nonsuit with leave to the ment which affirmed a judgment of the plaintiff to move to take it off, a motion was Court of Common Pleas for the County of made on the ground, among others, “that Jefferson, in that state, granting a nonsuit under the United States statute, specially in an action for the death of a railway ein- pleaded in this case, the decedent was not ployee who was killed while attempting to deemed to have assumed the risk, owing to make a coupling with a car not equipped the fact that the car was not equipped with with an automatic coupler. Reversed. an automatic coupler.” The question thus

See same case below, 207 Pa. 198, 56 Atl. raised was dealt with by the court in over417.

ruling the motion. Exceptions were alThe facts are stated in the opinion. lowed and an appeal taken. Among the er

Messrs. Luther M. Walter (by special rors assigned was one "in holding that the leave), Frederic D. McKenney, Edward A. shovel car was not a car used in interstate

I e

commerce or any other kind of traffic,”- from the requirements of the act. In subthe words of the court below. The supreme stance it merely creates an exception, which court affirmed the judgment in words that has been said to be the general purpose of we shall quote. We are of opinion that such clauses. Interstate Commerce Comthe plaintiff's rights were saved and that mission v. Baird, 194 U. S. 25, 36, 37, 48 we have jurisdiction of the case, subject to L. ed. 860, 865, 866, 24 Sup. Ct. Rep. 563. certain matters that we shall discuss. “The general rule of law is, that a proviso

On the merits there are two lesser ques-carves special exceptions only out of the tions to be disposed of before we come to body of the act; and those who set up any the main one. A doubt is suggested wheth- such exception must establish it,” etc. er the shovel car was in course of trans- Ryan v. Carter, 93 U. S. 78, 83, 23 L. ed. portation between points in different states, 807, 809; United States v. Dickson, 15 Pet. and also an argument is made that it was 141, 165, 10 L. ed. 689, 698. The rule apnot a car within the contemplation of § 2. plied to construction is applied equally to On the former matter there seems to have the burden of proof in a case like this. been no dispute below. The trial court United States v. Cook, 17 Wall. 168, 21 L. states the fact as shown by the evidence, ed. 538; Com. v. Hart, 11 Cush. 130, 131. and testimony that the car was coming from We come now to the main question. The Limestone, New York, is set forth, which, opinion of the supreme court was as folalthough based on the report of others, was lows: "Whether the act of Congress evidence, at least, unless objected to as has any applicability at all in actions for hearsay. Damon v. Carrol, 163 Mass. 404, negligence in the courts of Pennsylvania is 408, 409, 40 N. E. 185. It was the testi- a question that does not arise in this case, mony of the defendant's special agent emand we therefore express no opinion upon ployed to investigate the matter.

it. The learned judge below sustained the The latter question is pretty nearly an- nonsuit on the ground of the deceased's swered by Johnson v. Southern P. Co. 196 contributory negligence, and the judgment U. S. 1, 16, 49 L. ed. 363, 368, 25 Sup. Ct. is affirmed on his opinion on that subject.” Rep. 158, 161. As there observed: "Tested [207 Pa. 202, 56 Atl. 419.) It is said that by context, subject matter, and object, ‘any the existence of contributory negligence is car' meant all kinds of cars running on the not a Federal question, and that, as the rails, including locomotives.

The decision went off on that ground, there is object was to protect the lives and limbs nothing open to revision here. of railroad employees by rendering it un- We certainly do not mean to qualify or necessary for a man operating the couplers limit the rule that, for this court to ento go between the ends of the cars.” These tertain jurisdiction of a writ of error to a considerations apply to shovel cars as well state court, it must appear affirmatively as to locomotives, and show that the words that the state court could not have reached “used in moving interstate traffic" should its judgment without tacitly, if not exnot be taken in a narrow sense. The later pressly, deciding the Federal matter. Bachact of March 2, 1903, chap. 976, 32 Stat. tel v. Wilson (Jan. 7, 1907) 204 U. S. 36, at L. 943, U. S. Comp. Stat. Supp. 1905, p. 51 L. ed. 357, 27 Sup. Ct. Rep. 243. But, on 603, enacting that the provision shall be the other hand, if the question is duly raised held to apply to all cars and similar ve and the judgment necessarily, or, by what hicles, may be used as an argument on either appears, in fact involves such a decision, side; but, in our opinion, indicates the then this court will take jurisdiction, al

. intent of the original act. 196 U. S. 21, 49 though the opinion below says nothing about L. ed. 371, 25 Sup. Ct. Rep. 158. There it. Kaukauna Water Power Co. v. Green

. was an error on this point in the decision Bay & M. Canal Co. 142 U. S. 254, 35 L. below.

ed. 1004, 12 Sup. Ct. Rep. 173. And if it A faint suggestion was made that the is evident that a ruling purporting to deal proviso in § 6 of the act, that nothing in only with local law has for its premise or

, it shall apply to trains composed of four- necessary concomitant a cognizable mistake, wheel cars, was not negatived by the plain that may be sufficient to warrant a review. tiff. The fair inference from the evidence is Terre Haute & I. R. Co. v. Indiana, 194 U. that this was an unusually large car of the S. 579, 48 L. ed. 1124, 24 Sup. Ct. Rep. 767. ordinary pattern. But, further, if the de. The application of this rather vague prinfendant wished to rely upon this proviso, ciple will appear as we proceed. the burden was upon it to bring itself with- It is enacted by $ 8 of the act that any in the exception. The word "provided” is employee injured by any car iñ use conused in our legislation for many other pur- trary to the provisions of the act shall not poses beside that of expressing a condition. be deemed to have assumed the risk thereby The only condition expressed by this clause occasioned, although continuing in the em. is that four-wheeled cars shall be excepted ployment of the carrier after the unlawful use had been brought to his knowledge. An, charging him with assumption of the risk early, if not the earliest, application of the under another name. Especially is this phrase "assumption of risk” was the es- true in Pennsylvania, where some cases, at tablishment of the exception to the liability least, seem to have treated assumption of of a master for the negligence of his serv- risk and negligence as convertible terms. ant when the person injured was a fellow Patterson v. Pittsburg & C. R. Co. 76 Pa. servant of the negligent man. Whether an 389, 18 Am. Rep. 412. We cannot help actual assumption by contract was sup- thinking that this has happened in the presposed on grounds of economic theory, or ent case, as well as that the ruling upon the assumption was imputed because of a Schlemmer's negligence was so involved with conception of justice and convenience, does and dependent upon erroneous views of the not matter for the present purpose. Both statute that if the judgment stood the statreasons are suggested in the well-known case ute would suffer a wound. of Farwell v. Boston & W. R. Corp. 4 Met. To recur for a moment to the facts: The 49, 57, 58, 38 Am. Dec. 339. But, at the only ground, if any, on which Schlemmer present time, the motion is not confined to could be charged with negligence, is that risks of such negligence. It is extended, as when he was between the tracks he was in this statute it plainly is extended, to twice warned by the yard conductor to keep dangerous conditions, as of machinery, prem- his head down. It is true that he had a ises, and the like, which the injured party stick, which the rules of the company reunderstood and appreciated when he sub- quired to be used in coupling, but it could mitted his person to them. In this class not have been used in this case, or at least of cases the risk is said to be assumed be the contrary could not be and was not ascause a person who freely and voluntarily sumed for the purpose of directing a nonencounters it has only himself to thank suit. It was necessary for him to get beif harm comes, on a general principle of our tween the rails and under the shovel car law. Probably the modification of this gen- as he did, and his orders contemplated that eral principle by some judicial decisions he should do so. But the opinion of the and by statutes like § 8 is due to an opin- trial judge, to which, as has been seen, the ion that men who work with their hands supreme court refers, did not put the decihave not always the freedom and equality sion on the fact of warning alone. On the of position assumed by the doctrine of contrary, it began with a statement that an laissez faire to exist.

employee takes the risk even of unusual danAssumption of risk in this broad sense ob-gers if he has notice of them and voluntarily viously shades into negligence as commonly exposes himself to them. Then it went on to understood. Negligence consists in conduct say that the deceased attempted to make the which common experience or the special coupling with a full knowledge of the danknowledge of the actor shows to be so likely ger, and to imply that the defendant was to produce the result complained of, under guilty of no negligence in using the arrangethe circumstances known to the actor, that ment which it used. It then decided in terms he is held answerable for that result, al- that the shovel car was not a car within the though it was not certain, intended, or fore- meaning of § 2. Only after these prelimi

He is held to assume the risk upon naries did it say that, were the law otherthe same ground. Choctaw, O. & G. R. Co. wise, the deceased was guilty of contributory v. McDade, 191 U. S. 64, 68, 48 L. ed. negligence; leaving it somewhat uncertain 96, 100, 24 Sup. Ct. Rep. 24. Apart from what the negligence was. the notion of contract, rather shadowy as It seems to us not extravagant to say that applied to this broad form of the latter the final ruling was so implicated with the conception, the practical difference of the earlier errors that on that ground alone the two ideas is in the degree of their prox- judgment should not be allowed to stand. imity to the particular harm. The prelim. We are clearly of opinion that Schlemmer's inary conduct of getting into the dangerous rights were in no way impaired by his getemployment or relation is said to be acting between the rails and attempting to companied by assumption of the risk. The couple the cars. So far he was saved by the act more immediately leading to a specific provision that he did not assume the risk. accident is called negligent. But the dif- The negligence, if any, came later. We ference between the two is one of degree doubt if this was the opinion of the court rather than of kind; and when a statute ex- below. But suppose the nonsuit has been onerates a servant from the former, if at put clearly and in terms on Schlemmer's the same time it leaves the defense of con- raising his head too high after he had been tributory negligence still open to the master warned. Still we could not avoid dealing (a matter upon which we express no opin- with the case, because it still would be our ion), then, unless great care be taken, the duty to see that his privilege against being servant's rights will be sacrified by simply held to have assumed the risk of the situa