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tion should not be impaired by holding the in consequence thereof, there is no setting same thing under another name. If a man aside of the ordinary rules relating to connot intent on suicide, but desiring to live, tributory negligence, which is available as. is said to be chargeable with negligence as a defense, notwithstanding the statute, unmatter of law when he miscalculates the less that statute is so worded as to leave height of the car behind him by an inch, no doubt that this defense is also to be exwhile his duty requires him, in his crouchingcluded. Taylor v. Carew Mfg. Co. 143 Mass. position, to direct a heavy drawbar moving 470, 10 N. E. 308; Krause v. Morgan, 53 about him into a small slot in front, and this Ohio St. 26, 40 N. E. 886; East Tennessee, in the dusk, at nearly nine of an August V. & G. R. Co. v. Rush, 15 Lea, 145, 150; evening, it is utterly impossible for us to in- Queen v. Dayton Coal & I. Co. 95 Tenn. 458, terpret this ruling as not, however uncon- 30 L.R.A. 82, 49 Am. St. Rep. 935, 32 S. W. sciously, introducing the notion that to some 460; Reynolds v. Hindman, 32 Iowa, 146; extent the man had taken the risk of the Caswell v. Worth, 5 El. & Bl. 849; Buckner v. danger by being in the place at all. But Richmond & D. R. Co. 72 Miss. 873, 18 So. whatever may have been the meaning of the 449; Victor Coal Co. v. Muir, 20 Colo. 320, local courts, we are of opinion that the pos- 26 L.R.A. 435, 46 Am. St. Rep. 299, 38 Pac. sibility of such a minute miscalculation, un- 378; Holum v. Chicago, M. & St. P. R. Co. der such circumstances, whatever it may be 80 Wis. 299, 50 N. W. 99; Kilpatrick v. called, was so inevitably and clearly at- Grand Trunk R. Co. 74 Vt. 288, 93 Am. St. tached to the risk which Schlemmer did not Rep. 887, 52 Atl. 531; Denver & R. G. R. assume, that to enforce the statute requires Co. v. Arrighi, 63 C. C. A. 649, 129 Fed. that the judgment should be reversed. 347; Winkler v. Philadelphia & R. R. Co. Judgment reversed.

4 Penn. (Del.) 80, 53 Atl. 90. The Inter

state Commerce Commission held this co Mr. Justice Brewer, dissenting:

be the rule in reference to this particula I dissent from the opinion and judgment statute. 14 Ann. Rep. 1900, p. 84. Indeed, in this case and for these reasons:

it is not contended by the majority that the This was an action in the common pleas defense of contributory negligence has been court of Jefferson county, Pennsylvania, to taken away. recover damages on account of the death of That there is a vital difference between the husband of plaintiff. On the trial the assumption of risk and contributory neg. court ordered a nonsuit on the ground of ligence is clear. As said by this court in contributory negligence on the part of the Choctaw, O. & G. R. Co. v. McDade, 191 U. decedent, with leave to the plaintiff to move S. 64, 68, 48 L. ed. 96, 100, 24 Sup. Ct. Rep. to take the same off. This motion was made 24, 25: "The question of assumption of risk and overruled; judgment for the defendant is quite apart from that of contributory was entered, which was affirmed by the su- negligence.” See also Union P. R. Co. v. preme court of the state. The decedent was O'Brien, 161 U. S. 451, 456, 40 L. ed. 766, killed while attempting to couple a steam 770, 16 Sup. Ct. Rep. 618. This proposishovel to a caboose. The steam shovel was tion, however, is so familiar and elementary being moved in interstate transportation, that citation of authorities is superfluous. and was not equipped with the safety coup- In the motion for a nonsvit the second ler required by act of Congress of March 2, proposition was that “the evidence upon be1893. 27 Stat. at L. 531, chap. 196, U. S. half of plaintiff proves conclusively that the Comp. Stat. 1901, p. 3176. The 8th section accident happened because the deceased of that act provides :

failed to keep his head at least as low as “That any employee of any such com- the floor of the steam shovel, that this mon carrier who may be injured by any omission was the fault of the deceased exlocomotive, car, or train in use contrary to clusively, and that deceased was guilty of the provision of this act shall not be deemed contributory negligence and there can be no thereby to have assumed the risk thereby recovery in this case.” occasioned, although continuing in the em- In ordering the nonsuit the trial court ployment of such carrier after the unlawful said: use of such locomotive, car, or train had "True, under said act he was not conbeen brought to his knowledge.”

sidered to have assumed the risks of his emThus, while removing from the employee ployment, but by this is certainly meant the burden of any assumption of risk, does no more than such risks as he was exposed not relieve him from liability for contrib- to thereby, and resulted in injury free from utory negligence. For the rule is well set- his own negligent act. It would hardly be tled that while, in cases of this nature, a argued that defendant would be liable, under violation of the statutory obligation of the such circumstances, were the employee to employer is negligence per se, and action- voluntarily inflict an injury upon himself able if injuries are sustained by servants ! by means of the use of the improperly equipped car. And yet it is but• a step' appear that its decision was one necessarily from contributory negligence to such an act. in conflict therewith, and not that possibly

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"It seems very clear to us that, whatever we can disturb this judgment of the supreme view we may take of this case, we are led court of Pennsylvania, it must (paraphrasto the legal conclusion that decedent was ing the language just quoted a little) be guilty of negligence that contributed to his made to appear that its decision of the death, and that the plaintiff, however de question of contributory negligence was one

rving she may be, or however much we necessarily in disregard of the testimony regret the unfortunate accident, cannot re- and not that possibly or even probably it cover."

The supreme court affirmed the judgment It can not be said that there was no eviin the following per curiam opinion: dence of negligence on the part of the de“Whether the act of Congress

in cedent. The plaintiff's testimony (and the regard to the use of automatic couplings defendant offered none) showed that deon cars employed in interstate commerce ceased was an experienced brakeman; that has any applicability at all in actions for the link and pin coupling was in constant negligence in the courts of Pennsylvania is use on other than passenger coaches; that bea question that does not arise in this case, fore the deceased went under the car the and we therefore express no opinion upon it. pin had already been set; that, as he was The learned judge below sustained the non-going under the car, he was twice notified suit on the ground of the deceased's con- to be careful and keep his head down, and tributory negligence, and the judgment is yet, without any necessity therefor being affirmed on his opinion on that subject.” shown, he lifted his head and it was crushed [207 Pa. 202, 56 Atl. 419.]

between the two cars; that all he had to do That contributory negligence is a non- was to guide the free end of the drawbar Federal question is not doubted, and that into the slot, and while the drawbar weighed when a state court decides a case upon 75 to 80 pounds, it was fastened at one end, grounds which are non-Federal and sufficient and the lifting and guiding was only of to sustain the decision this court has no the other and loose end; that the drawjurisdiction is conceded.

heads were of the standard height and the While sometimes negligence is a mixed body of the shovel car higher than that of question of law and fact, yet, in the present the caboose. Immediately thereafter the case, whether the decedent, in attempting to coupling was made by another brakeman make the coupling after the warning given without difficulty. If an iron is dangerby the conductor, lifted his head unneces.ously hot, and one knows that it is hot sarily and negligently, is solely a question and is warned not to touch it, and does of fact, and, in cases coming on error from touch it without any necessity therefor bethe judgment of a state court, the findings ing shown, and is thereby burned, it is of that court on questions of fact have al-trifling to say that there is no evidence of ways been held conclusive on us. See Chris- negligence. man v. Miller, 197 U. S. 313, 319, 49 L. A second alternative is that this court ed. 770, 772, 25 Sup. Ct. Rep. 468, and the finds that the supreme court of Pennsylmany cases cited in the opinion.

vania recognizes no difference between asIt would seem from this brief statement sumption of risk and contributory neglithat the case ought to be dismissed for lack gence.

But that is not to be imputed in of jurisdiction. Escape from this conclu- view of the rulings in the lower court, afsion can only be accomplished in one of firmed by the supreme court, to say nothing these ways: By investigation of the testi- of the recognized standing and ability of

that court. mony and holding that there was no proof of contributory negligence. If the case

Or we may hold that the Pennsylvania came from one of the lower Federal courts out any evidence thereof, found that there

courts intentionally, wrongfully, and withwe might properly consider whether there was sufficient evidence of contributory neg. avoid the binding force of the Federal law.

was contributory negligence in order to ligence; but, as shown above, a very dif- During the course of the argument, in referent rule obtains in respect to cases com- sponse to an interrogation, counsel for plain. ing from a state court. We said this very tiff in error bluntly charged that upon term, in Bachtel v. Wilson, 204 U. S. 36, those courts. Of course this court always 40, ante, 243, 245, 27 Sup. Ct. Rep. 243, speaks in respectful terms of the decisions 245, in reference to a case coming from a it reviews, but the implication of the most state court to this: "Before we can pro-courteous language may be as certain as nounce its judgment in conflict with the a direct charge. Federal Constitution it must be made to It is intimated that the Pennsylvania

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courts confuse assumption of risk and con- to say that Mr. Justice Peckham, Mr. Justributory negligence, -in other words, are tice McKenna, and Mr. Justice Day concur unmindful of the difference between them, in this dissent. and Patterson v. Pittsburg & C. R. Co. 76 Pa. 389, 18 Am. Rep. 412, is cited as authority. That case was decided more than thirty years ago, and might, therefore, fairly be WILMINGTON STAR MINING COMPANY, considered not an expression of the present

Piff. in Err., views of those courts. But, on examination of the case, in which a judgment in favor

MINNIE FULTON. of the railroad was reversed by the supreme court, we find this language, which is Error to circuit court-jurisdiction-Fedsupposed to indicate the confusion (pp.

eral question.

1. Color for defendant's contention that 393, 394, Am. Rep. p. 415):

“In this discussion, however, we are not the requirements of the Illinois mining act to forget that the servant is required to of April 18, 1899, as to licensed employees,

are repugnant to the Federal Constitution, exercise ordinary prudence. If the instru. when applied to the first count in the mentality by which he is required to per- declaration, will sustain a writ of error from form his service is so obviously and imme- the Supreme Court of the United States to diately dangerous that a man of common a circuit court, as against a motion to disprudence would refuse to use it, the master miss, based on the theory that the first cannot be held liable for the resulting dam count in the declaration charges a violation age. In such case the law adjudges the of duty imposed by the statute directly servant guilty of concurrent negligence, and upon the mine owner, irrespective of the will refuse him that aid to which he other statutory requirements as to licensed em

ployees. wise would be entitled. But where the serv: Constitutional law-privileges and imant, in obedience to the requirement of munities. the master, incurs the risk of machinery 2. The privileges and immunities of a which, though dangerous, is not so much mine owner as a citizen of the United so as to threaten immediate injury, or where States are not invaded in violation of U. S. it is reasonably probable that it may be Const. 14th Amend. by the provisions of the safely used by extraordinary caution or Illinois mining act of April 18, 1899, imposskill, the rule is different. In such

ing upon mine owners responsibility for the the master is liable for a resulting acci- aminers, who are required by that act to be

defaults of mine managers and mine exdent."

selected by the mine owners from those Curiously enough, in Narramore v. Cleve holding licenses issued by the state mining land, C. C. & St. L. R. Co. 48 L.R.A. 68, board created by such statute, where it is 77, 37 C. C. A. 499, 505, 96 Fed. 298, not obligatory upon the mine owner to 304, a recent decision of the court of ap- select a particular individual, or to retain peals of the sixth circuit, in the opinion one when selected if found incompetent. announced by Circuit Judge Taft is lan- Constitutional law—due process of law. guage not altogether dissimilar:

3. The imposition upon mine owners by “Assumption of risk and contributory nego responsibility for the defaults of mine

the Illinois mining act of April 18, 1899, of ligence approximate where the danger is so managers and mine examiners, who are reobvious and imminent that no ordinarily pru- quired by that act to be selected by the dent man would assume the risk of injury mine owners from those holding licenses istherefrom. But where the danger, though sued by the state mining board created by present and appreciated, is one which many such act, does not deprive them of their men are in the habit of assuming, and property without due process of law, in which prudent men who must earn a living violation of U. s. Const. 14th Amend.,

where it is not obligatory upon a mine own. are willing to assume for extra compensa-er to select a particular individual, or to tion, one who assumes the risk cannot be retain one when selected if found incompesaid to be guilty of contributory negligence tent. if, having in view the risk of danger as- Constitutional law-equal protection of the sumed, he uses care reasonably commensu- laws. rate with the risk to avoid injurious conse- 4. The selection of mine owners as a quences. One who does not use such care, class upon which to impose responsibility and who, by reason thereof, suffers injury, for the defaults of certain employees who is guilty of contributory negligence, and are required by the Illinois mining act of cannot recover, because he, and not the April 18, 1899, to be selected from those master, causes the injury, or because they board created by that act, does not render

holding licenses issued by the state mining jointly cause it.”

such legislation repugnant to U. S. Const. For these reasons I dissent from the opin- 14th Amend., as denying the equal proion and judgment, and am authorized to 'tection of the laws..

*Ed. Note.-For cases in point, ses vol. 10, Cent. Dig. Constitutional Law, $ 702.

case

Proximate cause-concurring causes-ex- Mr. Justice White delivered the opinion of plosion of mine gas.

the court: 5. A mine owner is not absolved from

On January 27, 1901, Samuel Fulton, responsibility for his neglect to perform his while working as a trackinan and mine lastatutory duty to prevent the accumulation borer in a mine operated by the Wilmington of dangerous gases, which led to an plosion, because there was another efficient Star Mining Company, in Grundy county, cause contributing to the accident for which Illinois, was killed by an explosion of mine a recovery could not, under the declaration, gas. Minnie Fulton, the widow, on behalf be had.*

of herself and children, brought this action Trial-requested instructions—lack of sup- against the mining company in a court of port in evidence.

the state of Illinois to recover damages for 6. Requested instructions based upon the death of her husband. Because of dian hypothesis which there is no evidence versity of citizenship the case was removed tending to support are properly refused.t

to the circuit court of the United States Trial-requested instructions—lack of sup- for the northern district of Illinois. port in evidence. 7. Evidence tending to justify the in

The counts of the petition upon which the ference that a mine employee who was al

cause was ultimately tried were eight in lowed to enter a roadway without warning number, and in each was set out a specified knew, before entering, that it had not been act of negligence averred to have been the cleared of gas, does not require the giving proximate cause of the accident and to have of a requested instruction in an action for constituted wilful failure to perform specithe death of such employee as the result fied statutory duties. In count 1 it was alof an explosion, which is based on the as-leged that the mining company failed to sumption that such employee, when killed, was wilfully endangering the lives or health maintain in the mine currents of fresh air of others, or the security of the mine or its sufficient for the health and safety of Fulmachinery, or was recklessly disregarding

ton. Count 2 charged the failure to mainhis personal safety.t

tain crosscuts in the mine at proper disAppeal-prejudicial error-rulings on plead-tances apart, to secure the best ventilation ings-striking out.

at the face of the working places. In count 18. Permitting the jury, over objections 3 the company was charged with having raised by a motion to strike, to take into failed to build all necessary stoppings in consideration, in reaching the

the verdict,

a substantial manner to close crosscuts concounts in a declaration which had not been supported by any evidence, is prejudicial necting the inlet and outlet air courses in

the mine. error, where it is impossible from the record

In count 4 the negligence set to say upon which counts of the declaration up was the failure to have the place in the the verdict was based, notwithstanding the mine where Fulton was expected to pass provision of the Illinois practice act, § 57, and to work inspected before Fulton was that when an entire verdict is given on sev- permitted to enter the mine, to asecrtain eral counts it will not be set aside or re- whether there were accumulations of gas versed because of any defective count, if therein. In count 5 it was charged that the one or more of the counts be sufficient to sustain the verdict.

mining company, with knowledge of the existence of an accumulation of dangerous

gases in the mine and its unsafe condition [No. 139.]

when Fulton, in the course of his employment, entered the mine on the morning of

his death, wilfully failed and neglected to Argued and submitted January 7, 1907. Decided March 4, 1907.

prevent Fulton from entering the mine to work therein before the dangerous gases had

been removed and the conditions in the mine IN N ERROR to the Circuit Court of the rendered safe, said Fulton not being then

United States for the Northern District and there under the direction of the mine of Illinois to review a judgment for plain manager. In count 6 it was charged that tiff in an action for the death of a mine the mining company, on the morning of the employee as the result of an explosion, accident, had knowledge that a valve atwhich action had been removed to that court tachment of a certain steam pipe used to from the Circuit Court of Grundy County, conduct steam generated for the purpose of in that state Reversed and remanded for running a ventilating fan in the mine had further proceedings.

become accidentally broken or lost, whereThe facts are stated in the opinion. by the air currents in the mine became ob

Messrs. William P. Sidley, Charles S. structed and stopped, and a large quanHolt, and Arthur D. Wheeler for plaintiff' tity of dangerous gas was permitted to acin error.

cumulate in the mine at the place where Messrs. Arthur J. Eddy, P. C. Haley, and Fulton was required to pass and to work. E. C. Wetten for defendant in error. And it was further charged that, although

*Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, $$ 74, 75. Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, $8 596-603.

having such knowledge, the mining company, mine and through the roadways. About 300 wilfully failed and neglected to order the feet to the eastward of the main shaft was withdrawal of Fulton from the mine and situated an air or escapement shaft. At the prohibit his return thereto until thorough time of the accident the roads radiating ventilation had been established. In count north, east, and west had been completed, 7 the negligence charged was that the min but the circular roadway had only been ing company permitted Fulton to enter the completed between the outer edges of the mine before the mine examiner had visited east and north roads. Gas usually made its it and seen that the air current was travel presence known in the west roadway after ing in proper course and in proper quantity, going 50 or 60 feet from the bottom of the and before the accumulation of dangerous main shaft. For some time before the acgas, then in the mine, had been broken up or cident men were employed at or near the removed therefrom. In count 8 it was end of this road, continuing the circular charged that the mining company had knowl- road towards the northeast, and Fulton peredge that accumulations of gas existed in formed the work of track laying. In consethe mine, yet it wilfully failed and neg-quence of the noncompletion of the circular lected to place a conspicuous mark at the roadway and the absence of natural ventilaplace in the mine wuere accumulations of tion in the west roadway, a ventilating fan gas existed, as a notice to Fulton and other was used to force air through air boxes to employees to keep out, whereby Fulton the places where the men were working in failed to receive the statutory notice and that roadway, “so as to give them air and warning of the existence of accumulated gas, keep the gases out.” Whilst there is some and did not know of the dangerous condi- confusion in the description of the situation tion of the mine when he proceeded to work and operation of the ventilating fan, we at and near the place in the mine where take it that it was as follows: The fan such dangerous accumulation of gas existed. was situated at the bottom of the shaft

To the various counts the defendant and was operated by a small engine in close pleaded the general issue. The case was proximity to the fan. The steam to work twice tried by a jury. On the first trial, this engine was carried down from the at the close of the evidence for the plain-boilers above, the steam pipe passing down tiff, the jury was instructed to find for the main shaft to the fan engine at the botthe defendant. This judgment was reversed tom. To turn on the steam to this engine by the circuit court of appeals for the sev- and set it in motion there was a valve conenth circuit. 68 L.R.A. 168, 66 C. C. A. 247, trolled by a wheel. There was another valve 133 Fed. 193. The second trial resulted in by which the accumulation of condensed a verdict for the plaintiff and an entry of water could be let off so as to enable the apthe judgment which is here assailed.

paratus to be reached by live steam. This On the trial it was testified that the sink- valve was intended also to be moved by a ing of the shaft in the mine where Fulton wheel, but that appliance had not been put met his death was commenced in the month on, and, therefore, in order to turn the valve of April or May, 1900. Fulton worked for the use of a wrench was necessary. A several months at the mine before the ac- wrench used for this purpose was kept near cident, at first assisting in sinking the the fan. shaft. The mine is what is known as a The mine manager stopped the fan about long-wall mine, in which, it was testified, 4 o'clock on Saturday afternoon. On the crosscuts were not employed. Crosscuts are next day (Sunday) Fulton and the mine used in what is known as a room and pillar manager descended the shaft together. The mine. In that class of mines parallel en- fan had not started when they reached the tries are run, and after proceeding a certain bottom of the shaft. The mine manager atdistance usually 60 feet-a road is cut tempted to start the fan, but could not across, connecting the parallel entries, to find the wrench, and there was a delay of permit of a circulation of air. After going a minute or two while he went up the shaft another 60 feet a new crosscut is made and and secured a wrench. When the fan was the openings of the prior crosscut are

the prior crosscut are started the mine examiner and several other stopped up, thus carrying the circulation of employees who had descended the mine just air to the new crosscut. The mine in ques- ahead of Fulton and the mine manager were tion was not thus intended to be constructed. with the latter in the immediate vicinity of From the bottom of the main or hoist- the fan. At that time, as testified to by the ing shaft towards the north, south, east, mine manager, he believed there was gas in and west radiated four main headings or the west roadway.

the west roadway. Soon after the starting roadways, and it was contemplated to con- of the fan Fulton and a helper proceeded struct a circular road connecting the outer along the west roadway with pit lamps ends of these four main roads so as to cause naked lights-on their caps, pushing a car a complete circulation of air around the loaded with track material. In a few min

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