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PPEAL from the Court of Claims to review a judgment allowing a clerk of a Federal court separate docket fees for separate trials under one indictment, and disallowing a counterclaim for charges paid for recording abstracts of judgments. Affirmed. The facts are stated in the opinion. Assistant Attorney General Van Orsdel and Mr. Philip M. Ashford for appellant. Mr. Frank B. Crosthwaite for appellee.

on the word "cause." The argument is that the word "cause" is limited by the word indictment, and if it be returned against a number of persons and they be granted separate trials there is only one "cause." It is conceded that the court may grant separate trials, and it is not disputed that the court did so in the case for which the services sued for were charged and that each 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:

The claimant in the court below, appellee here, was clerk of the United States circuit court for the southern district of West Virginia from July 1 to July 6, 1902, and clerk of that court and the district court from July 16, 1902, to September 17, 1904. He regularly rendered accounts for such services, which contained, among contained, among other things, charges for "separate docket fees in separate trials under one indictment." The charges were disallowed and this suit was brought therefor in the court of claims. Judgment was rendered for claimant for the sum of $125.45, certain items being disallowed.

A counterclaim was filed by the United States for the recovery of $57.90, charged for "docketing judgments," alleged to have been erroneously and unlawfully paid to claimant by the accounting officers of the United States. The counterclaim was disallowed and the United States assigns as error the action of the court in rendering judgment for the claimant as aforesaid and overruling the counterclaim. In passing on the charge for the service the court of claims said:

"The defendant's contention as to item 6 is troublesome. It appears that joint indictments were returned against several defendants; that on motion of defendants' counsel separate trials were granted to some of the defendants, whereupon the clerk made separate docket entries in accordance with said motion, docketing said causes as though separate indictments had been returned against the parties granted separate trials.

"Paragraph 10 of § 828 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 635) provides:

"For making dockets and indexes, issuing venire, tax costs, and all other services on the trial or argument of a cause where issue is joined and testimony given, three dollars.'

"By paragraph 11 a fee of $2 is allowed where no testimony is given, and by paragraph 12 a fee of $1 is allowed where the cause is dismissed or discontinued or judg ment or decree rendered without issue."

The contention of the appellant turns up

each was independent of the other. State v. Rogers, 6 Baxt. 563; Noland v. State, 19 Ohio, 131; Bryan v. Spivey, 106 N. C. 95, 11 S. E. 510. The services rendered were a proper charge under the statute.

2. The counterclaim was for the recovery of $57.90, charges made for "docketing judg ments," and the lists filed showed amounts from $0.15 to $8.70. The court of claims' comment was: "The defendant's counterclaim, predicated upon the alleged illegal allowance for the docketing of judgments, will have to be dismissed. The services here charged for were admittedly performed, by order of the court, and, under United States v. Jones, 193 U. S. 528, 48 L. ed. 776, 24 Sup. Ct. Rep. 561, allowable."

The case referred to is United States v. Jones, supra. In the absence of anything in the record to the contrary, we must assume that the application of that case was made on account of the facts presented to the court of claims in this. Counsel for the United States say that the findings of the court of claims "on the subject of the counterclaim are not as full and complete as they might be." A belief is expressed, however, that it appears, from the face of the counterclaim, that they are folio fees. At all events, it is insisted, that they are not the charges specified in paragraphs 10, 11, and 12 of § 828 of the Revised Statutes. This the appellee concedes in effect, and urges that the charge was made under and is justified by paragraph 8 of that section, which reads as follows: "For entering any rule, order, continuance, judgment, decree, or recognizance, or drawing any bond or making any record, certificate, return, or report, for each folio, fifteen cents." The words we have italicized are the words upon which appellee relies, combined with the following order of the court:

"The clerk of this court is directed to keep a judgment docket wherein shall be recorded abstracts of all judgments rendered in cases wherein the United States is a party. Said judgment docket shall contain: "The number of the case. "The date of the indictment. "The names of the parties. "The amount of the judgment.

"The amount of costs. "The date of the judgment. "When docketed.

"The amount paid.

"The disposition of the funds and any additional matter which the clerk may deem pertinent."

The record required by that rule, appellee contends, is different from the various

dockets which are kept in all United States courts in which brief entries of fact are made, and which, it is said, are covered by the docket fee. The contention is consonant with the decision of the court of claims, and we do not think it is refuted by the suggestions made by appellant. Judgment affirmed.

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

V.

BUFFALO, ROCHESTER, & PITTSBURG
RAILWAY COMPANY.

Error to state court-Federal question-decision on non-Federal ground.

1. A state court, by deciding that a railway employee who was killed while attempting to make a coupling with a car not equipped with an automatic coupler, as required by the act of March 2, 1893 (27 Stat. at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3174), § 2, was, as a matter of law, guilty of contributory negligence in lifting his head a little too high after he had been warned of the danger, cannot defeat the appellate jurisdiction of the Federal Supreme Court, where § 8 of that statute was specially invoked as excluding the defense of assumption of risk.

Master and servant-duty as to appliancesautomatic coupler.

2. A shovel car is a "car" within the meaning of the act of March 2, 1893, § 2, requiring any car used in moving interstate traffic to be equipped with an automatic coupler.

Evidence-burden of proof.

error.

Messrs. Marlin E. Olmsted, C. H. McCauley, and A. C. Stamm for defendant in

error.

Mr. Justice Holmes delivered the opinion of the court:

This is an action for the death of the plaintiff's intestate, Adam M. Schlemmer, while trying to couple a shovel car to a caboose. A nonsuit was directed at the trial and the direction was sustained by the supreme court of the state. The shovel car was part of a train on its way through Pennsylvania from a point in New York, and was not equipped with an automatic coupler in accordance with the act of March 2, 1893, chap. 196, § 2, 27 Stat. at L. 531, U. S. Comp. Stat. 1901, p. 3174. Instead of such a coupler it had an iron drawbar fastened underneath the car by a pin and projecting about a foot beyond the car. drawbar weighed about 80 pounds and its free end played up and down. On this end was an eye, and the coupling had to be done by lifting the free end possibly a foot, so that it should enter a slot in an automatic coupler on the caboose and allow a pin to drop through the eye. Owing to the ab

This

sence of buffers on the shovel car and to its

3. The burden of proof is upon a carrier to bring itself within the exception in favor of four-wheeled cars which is made by the proviso in § 6 of the automatic coupler act of March 2, 1893.* 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 employee, while attempting to make a coupling with a car not equipped with an automatic coupler, as required by the act of March 2, 1893, § 2, might miscalculate the height to which he might safely raise his head, is so inevitably and clearly attached to the risk which, under § 8 of that statute, he does not assume, as to prevent a court from holding, as a matter of law, that he was guilty of contributory negligence which would defeat any recovery in lifting his head a little too high after being warned of the danger.t

[No. 41.]

crush anyone between them if they came together and the coupling failed to be made. Schlemmer was ordered to make the coupling as the train was slowly approaching the caboose. To do so he had to get between the cars, keeping below the level of the bottom of the shovel car. It was dusk, and in endeavoring to obey the order and to guide the drawbar he rose a very little too high, and, as he failed to hit the slot, the top of his head was crushed.

The plaintiff, in her declaration, alleged that the defendant was transporting the 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

IN

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 havState of Pennsylvania to review a judging directed a nonsuit with leave to the ment which affirmed a judgment of the Court of Common Pleas for the County of Jefferson, in that state, granting a nonsuit in an action for the death of a railway employee who was killed while attempting to make a coupling with a car not equipped with an automatic coupler. Reversed.

See same case below, 207 Pa. 198, 56 Atl. 417.

The facts are stated in the opinion. Messrs. Luther M. Walter (by special leave), Frederic D. McKenney, Edward A.

plaintiff to move to take it off, a motion was made on the ground, among others, "that under the United States statute, specially pleaded in this case, the decedent was not deemed to have assumed the risk, owing to the fact that the car was not equipped with an automatic coupler." The question thus raised was dealt with by the court in overruling the motion. Exceptions were allowed and an appeal taken. Among the errors assigned was one "in holding that the shovel car was not a car used in interstate

*Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 899-903. tEd. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 755.

commerce or any other kind of traffic," the words of the court below. The supreme court affirmed the judgment in words that we shall quote. We are of opinion that the plaintiff's rights were saved and that we have jurisdiction of the case, subject to certain matters that we shall discuss.

On the merits there are two lesser questions to be disposed of before we come to the main one. A doubt is suggested whether the shovel car was in course of transportation between points in different states, and also an argument is made that it was not a car within the contemplation of § 2. On the former matter there seems to have been no dispute below. The trial court states the fact as shown by the evidence, and testimony that the car was coming from Limestone, New York, is set forth, which, although based on the report of others, was evidence, at least, unless objected to as hearsay. Damon v. Carrol, 163 Mass. 404, 408, 409, 40 N. E. 185. It was the testimony of the defendant's special agent employed to investigate the matter.

The latter question is pretty nearly answered by Johnson v. Southern P. Co. 196 U. S. 1, 16, 49 L. ed. 363, 368, 25 Sup. Ct. Rep. 158, 161. As there observed: "Tested by context, subject-matter, and object, 'any car' meant all kinds of cars running on the rails, including locomotives. . The object was to protect the lives and limbs of railroad employees by rendering it unnecessary for a man operating the couplers to go between the ends of the cars." These considerations apply to shovel cars as well as to locomotives, and show that the words "used in moving interstate traffic" should not be taken in a narrow sense. The later act of March 2, 1903, chap. 976, 32 Stat. at L. 943, U. S. Comp. Stat. Supp. 1905, p. 603, enacting that the provision shall be held to apply to all cars and similar vehicles, may be used as an argument on either side; but, in our opinion, indicates the intent of the original act. 196 U. S. 21, 49 L. ed. 371, 25 Sup. Ct. Rep. 158. There was an error on this point in the decision below.

A faint suggestion was made that the proviso in § 6 of the act, that nothing in it shall apply to trains composed of fourwheel cars, was not negatived by the plaintiff. The fair inference from the evidence is that this was an unusually large car of the ordinary pattern. But, further, if the defendant wished to rely upon this proviso, the burden was upon it to bring itself within the exception. The word "provided" is used in our legislation for many other purposes beside that of expressing a condition. The only condition expressed by this clause is that four-wheeled cars shall be excepted

from the requirements of the act. In substance it merely creates an exception, which has been said to be the general purpose of such clauses. Interstate Commerce Commission v. Baird, 194 U. S. 25, 36, 37, 48 L. ed. 860, 865, 866, 24 Sup. Ct. Rep. 563. "The general rule of law is, that a proviso carves special exceptions only out of the body of the act; and those who set up any such exception must establish it," etc. Ryan v. Carter, 93 U. S. 78, 83, 23 L. ed. 807, 809; United States v. Dickson, 15 Pet. 141, 165, 10 L. ed. 689, 698. The rule applied to construction is applied equally to the burden of proof in a case like this. United States v. Cook, 17 Wall. 168, 21 L. ed. 538; Com. v. Hart, 11 Cush. 130, 134.

We come now to the main question. The opinion of the supreme court was as follows: "Whether the act of Congress has any applicability at all in actions for negligence in the courts of Pennsylvania is a question that does not arise in this case, and we therefore express no opinion upon it. The learned judge below sustained the nonsuit on the ground of the deceased's contributory negligence, and the judgment is affirmed on his opinion on that subject." [207 Pa. 202, 56 Atl. 419.] It is said that the existence of contributory negligence is not a Federal question, and that, as the decision went off on that ground, there is nothing open to revision here.

We certainly do not mean to qualify or limit the rule that, for this court to entertain jurisdiction of a writ of error to a state court, it must appear affirmatively that the state court could not have reached its judgment without tacitly, if not expressly, deciding the Federal matter. Bachtel v. Wilson (Jan. 7, 1907) 204 U. S. 36, 51 L. ed. 357, 27 Sup. Ct. Rep. 243. But, on the other hand, if the question is duly raised and the judgment necessarily, or, by what appears, in fact involves such a decision, then this court will take jurisdiction, although the opinion below says nothing about it. Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254, 35 L. ed. 1004, 12 Sup. Ct. Rep. 173. And if it is evident that a ruling purporting to deal only with local law has for its premise or necessary concomitant a cognizable mistake, that may be sufficient to warrant a review. Terre Haute & I. R. Co. v. Indiana, 194 U. S. 579, 48 L. ed. 1124, 24 Sup. Ct. Rep. 767. The application of this rather vague principle will appear as we proceed.

It is enacted by § 8 of the act that any employee injured by any car in use contrary to the provisions of the act shall not be deemed to have assumed the risk thereby occasioned, although continuing in the employment of the carrier after the unlawful

Patterson v. Pittsburg & C. R. Co. 76 Pa. 389, 18 Am. Rep. 412. We cannot help thinking that this has happened in the present case, as well as that the ruling upon Schlemmer's negligence was so involved with and dependent upon erroneous views of the statute that if the judgment stood the statute would suffer a wound.

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 servant of the negligent man. Whether an actual assumption by contract was supposed on grounds of economic theory, or the assumption was imputed because of a conception of justice and convenience, does not matter for the present purpose. Both reasons are suggested in the well-known case of Farwell v. Boston & W. R. Corp. 4 Met. 49, 57, 58, 38 Am. Dec. 339. But, at the present time, the motion is not confined to risks of such negligence. It is extended, as in this statute it plainly is extended, to dangerous conditions, as of machinery, premises, and the like, which the injured party understood and appreciated when he submitted his person to them. In this class of cases the risk is said to be assumed because a person who freely and voluntarily encounters it has only himself to thank if harm comes, on a general principle of our law. Probably the modification of this general principle by some judicial decisions and by statutes like § 8 is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist.

Assumption of risk in this broad sense obviously shades into negligence as commonly understood. Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. He is held to assume the risk upon the same ground. Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 68, 48 L. ed. 96, 100, 24 Sup. Ct. Rep. 24. Apart from the notion of contract, rather shadowy as applied to this broad form of the latter conception, the practical difference of the two ideas is in the degree of their proximity to the particular harm. The preliminary conduct of getting into the dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligent. But the difference between the two is one of degree rather than of kind; and when a statute exonerates a servant from the former, if at the same time it leaves the defense of contributory negligence still open to the master (a matter upon which we express no opinion), then, unless great care be taken, the servant's rights will be sacrified by simply

To recur for a moment to the facts: The only ground, if any, on which Schlemmer could be charged with negligence, is that when he was between the tracks he was twice warned by the yard conductor to keep his head down. It is true that he had a stick, which the rules of the company required to be used in coupling, but it could not have been used in this case, or at least the contrary could not be and was not assumed for the purpose of directing a nonsuit. It was necessary for him to get between the rails and under the shovel car as he did, and his orders contemplated that he should do so. But the opinion of the trial judge, to which, as has been seen, the supreme court refers, did not put the decision on the fact of warning alone. On the contrary, it began with a statement that an employee takes the risk even of unusual dangers if he has notice of them and voluntarily exposes himself to them. Then it went on to say that the deceased attempted to make the coupling with a full knowledge of the danger, and to imply that the defendant was guilty of no negligence in using the arrangement which it used. It then decided in terms that the shovel car was not a car within the meaning of § 2. Only after these preliminaries did it say that, were the law otherwise, the deceased was guilty of contributory negligence; leaving it somewhat uncertain what the negligence was.

It seems to us not extravagant to say that the final ruling was so implicated with the earlier errors that on that ground alone the judgment should not be allowed to stand. We are clearly of opinion that Schlemmer's rights were in no way impaired by his getting between the rails and attempting to couple the cars. So far he was saved by the provision that he did not assume the risk. The negligence, if any, came later. We doubt if this was the opinion of the court below. But suppose the nonsuit has been put clearly and in terms on Schlemmer's raising his head too high after he had been warned. Still we could not avoid dealing with the case, because it still would be our duty to see that his privilege against being held to have assumed the risk of the situa

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