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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 crouching cluded. 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. 4 Penn. (Del.) 80, 53 Atl. 90. The Interstate Commerce Commission held this to be the rule in reference to this particulastatute. 14 Ann. Rep. 1900, p. 84. Indeed, it is not contended by the majority that the defense of contributory negligence has been taken away.
Mr. Justice Brewer, dissenting:
I dissent from the opinion and judgment in this case and for these reasons:
This was an action in the common pleas court of Jefferson county, Pennsylvania, to recover damages on account of the death of the husband of plaintiff. On the trial the court ordered a nonsuit on the ground of contributory negligence on the part of the decedent, with leave to the plaintiff to move to take the same off. This motion was made and overruled; judgment for the defendant was entered, which was affirmed by the supreme court of the state. The decedent was killed while attempting to couple a steam shovel to a caboose. The steam shovel was being moved in interstate transportation, and was not equipped with the safety coupler required by act of Congress of March 2, 1893. 27 Stat. at L. 531, chap. 196, U. S. Comp. Stat. 1901, p. 3176. The 8th section of that act provides:
"That any employee of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge."
Thus, while removing from the employee the burden of any assumption of risk, does not relieve him from liability for contributory negligence. For the rule is well settled that while, in cases of this nature, a violation of the statutory obligation of the employer is negligence per se, and actionable if injuries are sustained by servants
That there is a vital difference between assumption of risk and contributory negligence is clear. As said by this court in Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 68, 48 L. ed. 96, 100, 24 Sup. Ct. Rep. 24, 25: "The question of assumption of risk is quite apart from that of contributory negligence." See also Union P. R. Co. v. O'Brien, 161 U. S. 451, 456, 40 L. ed. 766, 770, 16 Sup. Ct. Rep. 618. This proposition, however, is so familiar and elementary that citation of authorities is superfluous.
In the motion for a nonsvit the second proposition was that "the evidence upon behalf of plaintiff proves conclusively that the accident happened because the deceased failed to keep his head at least as low as the floor of the steam shovel, that this omission was the fault of the deceased exclusively, and that deceased was guilty of contributory negligence and there can be no recovery in this case."
In ordering the nonsuit the trial court said:
"True, under said act he was not considered to have assumed the risks of his employment, but by this is certainly meant no more than such risks as he was exposed to thereby, and resulted in injury free from his own negligent act. It would hardly be argued that defendant would be liable, under such circumstances, were the employee to voluntarily inflict an injury upon himself by means of the use of the improperly
equipped car. And yet it is but a step from contributory negligence to such an act. "It seems very clear to us that, whatever view we may take of this case, we are led to the legal conclusion that decedent was guilty of negligence that contributed to his death, and that the plaintiff, however deserving she may be, or however much we regret the unfortunate accident, cannot recover."
The supreme court affirmed the judgment in the following per curiam opinion:
"Whether the act of Congress
regard to the use of automatic couplings on cars employed in interstate commerce 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.]
appear that its decision was one necessarily in conflict therewith, and not that possibly or even probably it was." Before, then, we can disturb this judgment of the supreme court of Pennsylvania, it must (paraphrasing the language just quoted a little) be made to appear that its decision of the question of contributory negligence was one necessarily in disregard of the testimony and not that possibly or even probably it
It cannot be said that there was no evidence of negligence on the part of the dein cedent. The plaintiff's testimony (and the defendant offered none) showed that deceased was an experienced brakeman; that the link and pin coupling was in constant use on other than passenger coaches; that before the deceased went under the car the pin had already been set; that, as he was going under the car, he was twice notified to be careful and keep his head down, and yet, without any necessity therefor being shown, he lifted his head and it was crushed between the two cars; that all he had to do was to guide the free end of the drawbar into the slot, and while the drawbar weighed 75 to 80 pounds, it was fastened at one end, and the lifting and guiding was only of the other and loose end; that the drawheads were of the standard height and the body of the shovel car higher than that of the caboose. Immediately thereafter the coupling was made by another brakeman without difficulty. If an iron is dangerously hot, and one knows that it is hot and is warned not to touch it, and does touch it without any necessity therefor being shown, and is thereby burned, it is trifling to say that there is no evidence of negligence.
That contributory negligence is a nonFederal question is not doubted, and that when a state court decides a case upon grounds which are non-Federal and sufficient to sustain the decision this court has no jurisdiction is conceded.
While sometimes negligence is a mixed question of law and fact, yet, in the present case, whether the decedent, in attempting to make the coupling after the warning given by the conductor, lifted his head unnecessarily and negligently, is solely a question of fact, and, in cases coming on error from the judgment of a state court, the findings of that court on questions of fact have always been held conclusive on us. See Chrisman v. Miller, 197 U. S. 313, 319, 49 L. ed. 770, 772, 25 Sup. Ct. Rep. 468, and the many cases cited in the opinion.
It would seem from this brief statement that the case ought to be dismissed for lack of jurisdiction. Escape from this conclusion can only be accomplished in one of these ways: By investigation of the testimony and holding that there was no proof of contributory negligence. If the case came from one of the lower Federal courts we might properly consider whether there was sufficient evidence of contributory negligence; but, as shown above, a very different rule obtains in respect to cases coming from a state court. We said this very term, in Bachtel v. Wilson, 204 U. S. 36, 40, ante, 243, 245, 27 Sup. Ct. Rep. 243, 245, in reference to a case coming from a state court to this: "Before we can pronounce its judgment in conflict with the Federal Constitution it must be made to
Or we may hold that the Pennsylvania courts intentionally, wrongfully, and with
out any evidence thereof, found that there avoid the binding force of the Federal law. was contributory negligence in order to During the course of the argument, in retiff in error bluntly charged that upon sponse to an interrogation, counsel for plainthose courts. Of course this court always speaks in respectful terms of the decisions it reviews, but the implication of the most courteous language may be as certain as a direct charge.
It is intimated that the Pennsylvania
WILMINGTON STAR MINING COMPANY,
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 considered not an expression of the present views of those courts. But, on examination of the case, in which a judgment in favor of the railroad was reversed by the supreme court, we find this language, which is supposed to indicate the confusion (pp. 393, 394, Am. Rep. p. 415):
"In this discussion, however, we are not to forget that the servant is required to exercise ordinary prudence. If the instrumentality by which he is required to perform his service is so obviously and immediately dangerous that a man of common prudence would refuse to use it, the master cannot be held liable for the resulting damage. In such case the law adjudges the servant guilty of concurrent negligence, and will refuse him that aid to which he other wise would be entitled. But where the servant, in obedience to the requirement of the master, incurs the risk of machinery which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable that it may be safely used by extraordinary caution or skill, the rule is different. In such case the master is liable for a resulting accident."
Error to circuit court-jurisdiction-Fed-
the requirements of the Illinois mining act
Constitutional law-privileges and im
2. The privileges and immunities of a mine owner as a citizen of the United States are not invaded in violation of U. S. Const. 14th Amend. by the provisions of the Illinois mining act of April 18, 1899, imposing upon mine owners responsibility for the aminers, who are required by that act to be defaults of mine managers and mine exselected 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. 3. The imposition upon mine owners by guage not altogether dissimilar: the Illinois mining act of April 18, 1899, of "Assumption of risk and contributory neg-responsibility for the defaults of mine 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 are in the habit of assuming, and property without due process of law, in which prudent men who must earn a living where it is not obligatory upon a mine ownviolation of U. S. Const. 14th Amend., 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 assumed, he uses care reasonably commensurate with the risk to avoid injurious consequences. One who does not use such care, and who, by reason thereof, suffers injury, is guilty of contributory negligence, and cannot recover, because he, and not the master, causes the injury, or because they jointly cause it."
For these reasons I dissent from the opinion and judgment, and am authorized to
*Ed. Note.-For cases in point, see vol. 10, Cent.
Constitutional law-equal protection of the laws.
4. The selection of mine owners as a class upon which to impose responsibility for the defaults of certain employees who are required by the Illinois mining act of April 18, 1899, to be selected from those board created by that act, does not render holding licenses issued by the state mining such legislation repugnant to U. S. Const. 14th Amend., as denying the equal protection of the laws. *
Dig. Constitutional Law, § 702.
Proximate cause-concurring plosion of mine gas.
5. A mine owner is not absolved from responsibility for his neglect to perform his statutory duty to prevent the accumulation of dangerous gases, which led to an explosion, because there was another efficient cause contributing to the accident for which a recovery could not, under the declaration, be had.*
Trial-requested instructions-lack of support in evidence.
6. Requested instructions based upon an hypothesis which there is no evidence tending to support are properly refused.† Trial-requested instructions-lack of support in evidence.
7. Evidence tending to justify the inference that a mine employee who was allowed to enter a roadway without warning knew, before entering, that it had not been cleared of gas, does not require the giving of a requested instruction in an action for the death of such employee as the result of an explosion, which is based on the assumption that such employee, when killed, was wilfully endangering the lives or health of others, or the security of the mine or its machinery, or was recklessly disregarding his personal safety.† Appeal-prejudicial error-rulings on pleadings-striking out.
8. Permitting the jury, over objections raised by a motion to strike, to take into consideration, in reaching the the verdict, counts in a declaration which had not been supported by any evidence, is prejudicial error, where it is impossible from the record to say upon which counts of the declaration the verdict was based, notwithstanding the provision of the Illinois practice act, § 57, that when an entire verdict is given on several counts it will not be set aside or reversed because of any defective count, if one or more of the counts be sufficient to
sustain the verdict.
Argued and submitted January 7, 1907.
Mr. Justice White delivered the opinion of the court:
On January 27, 1901, Samuel Fulton, while working as a trackman and mine laborer in a mine operated by the Wilmington Star Mining Company, in Grundy county, Illinois, was killed by an explosion of mine gas. Minnie Fulton, the widow, on behalf of herself and children, brought this action against the mining company in a court of the state of Illinois to recover damages for the death of her husband. Because of diversity of citizenship the case was removed to the circuit court of the United States for the northern district of Illinois.
The counts of the petition upon which the cause was ultimately tried were eight in number, and in each was set out a specified act of negligence averred to have been the proximate cause of the accident and to have constituted wilful failure to perform specified statutory duties. In count 1 it was alleged that the mining company failed to maintain in the mine currents of fresh air sufficient for the health and safety of Fulton. Count 2 charged the failure to maintain crosscuts in the mine at proper distances apart, to secure the best ventilation at the face of the working places. In count 3 the company was charged with having failed to build all necessary stoppings in a substantial manner to close crosscuts con
necting the inlet and outlet air courses in the mine. In count 4 the negligence set up was the failure to have the place in the mine where Fulton was expected to pass and to work inspected before Fulton was permitted to enter the mine, to asecrtain whether there were accumulations of gas therein. In count 5 it was charged that the mining company, with knowledge of the existence of an accumulation of dangerous gases in the mine and its unsafe condition when Fulton, in the course of his employment, entered the mine on the morning of his death, wilfully failed and neglected to prevent Fulton from entering the mine to work therein before the dangerous gases had been removed and the conditions in the mine rendered safe, said Fulton not being then and there under the direction of the mine manager. In count 6 it was charged that the mining company, on the morning of the accident, had knowledge that a valve attachment of a certain steam pipe used to conduct steam generated for the purpose of running a ventilating fan in the mine had become accidentally broken or lost, whereThe facts are stated in the opinion. by the air currents in the mine became obMessrs. 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
N ERROR to the Circuit Court of the United States for the Northern District of Illinois to review a judgment for plain
tiff in an action for the death of a mine
employee as the result of an explosion, which action had been removed to that court from the Circuit Court of Grundy County, in that state Reversed and remanded for further proceedings.
*Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 74, 75. tEd. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 596-603.
mine and through the roadways. About 300 feet to the eastward of the main shaft was situated an air or escapement shaft. At the time of the accident the roads radiating north, east, and west had been completed, but the circular roadway had only been completed between the outer edges of the east and north roads. Gas usually made its presence known in the west roadway after going 50 or 60 feet from the bottom of the main shaft. For some time before the accident men were employed at or near the end of this road, continuing the circular road towards the northeast, and Fulton performed the work of track laying. In conse
having such knowledge, the mining company wilfully failed and neglected to order the withdrawal of Fulton from the mine and prohibit his return thereto until thorough ventilation had been established. In count 7 the negligence charged was that the mining company permitted Fulton to enter the mine before the mine examiner had visited it and seen that the air current was traveling in proper course and in proper quantity, and before the accumulation of dangerous gas, then in the mine, had been broken up or removed therefrom. In count 8 it was charged that the mining company had knowledge that accumulations of gas existed in the mine, yet it wilfully failed and neg-quence of the noncompletion of the circular lected to place a conspicuous mark at the place in the mine waere accumulations of gas existed, as a notice to Fulton and other employees to keep out, whereby Fulton failed to receive the statutory notice and warning of the existence of accumulated gas, and did not know of the dangerous condition of the mine when he proceeded to work at and near the place in the mine where such dangerous accumulation of gas existed. To the various counts the defendant pleaded the general issue. The case was twice tried by a jury. On the first trial, at the close of the evidence for the plaintiff, the jury was instructed to find for the defendant. This judgment was reversed by the circuit court of appeals for the seventh circuit. 68 L.R.A. 168, 66 C. C. A. 247, 133 Fed. 193. The second trial resulted in a verdict for the plaintiff and an entry of the judgment which is here assailed.
On the trial it was testified that the sinking of the shaft in the mine where Fulton met his death was commenced in the month of April or May, 1900. Fulton worked for several months at the mine before the accident, at first assisting in sinking the shaft. The mine is what is known as a long-wall mine, in which, it was testified, crosscuts were not employed. Crosscuts are used in what is known as a room and pillar mine. In that class of mines parallel entries are run, and after proceeding a certain distance usually 60 feet-a road is cut across, connecting the parallel entries, to permit of a circulation of air. After going another 60 feet a new crosscut is made and the openings of the prior crosscut are stopped up, thus carrying the circulation of air to the new crosscut. The mine in question was not thus intended to be constructed. From the bottom of the main or hoisting shaft towards the north, south, east, and west radiated four main headings or roadways, and it was contemplated to construct a circular road connecting the outer ends of these four main roads so as to cause a complete circulation of air around the
roadway and the absence of natural ventila-
The mine manager stopped the fan about 4 o'clock on Saturday afternoon. On the next day (Sunday) Fulton and the mine manager descended the shaft together. The fan had not started when they reached the bottom of the shaft. The mine manager attempted to start the fan, but could not find the wrench, and there was a delay of a minute or two while he went up the shaft and secured a wrench. When the fan was started the mine examiner and several other employees who had descended the mine just ahead of Fulton and the mine manager were with the latter in the immediate vicinity of the fan. At that time, as testified to by the nine manager, he believed there was gas in the west roadway. Soon after the starting of the fan Fulton and a helper proceeded along the west roadway with pit lampsnaked lights-on their caps, pushing a car loaded with track material. In a few min