Argument for Plaintiff in Error.

234 U.S.

height of draw-bars, applicable to locomotives other than those that are excepted in terms.

By the amendment of 1903 to the Safety Appliance Act the standard height of draw-bars was made applicable to all railroad vehicles used upon any railroad engaged in interstate commerce, and to all other vehicles, including locomotives, used in connection with them so far as the respective safety devices and standards are capable of being installed upon the respective vehicles. Chicago &c. Ry. Co. v. United States, 196 Fed. Rep. 882, approved.

THE facts, which involve the construction and application of the provisions of the Safety Appliance Acts and of the Employers' Liability Act, are stated in the opinion.

Mr. L. E. Jeffries and Mr. L. D. Smith for plaintiff in

error:

The Safety Appliance Act did not require a draw-bar thirty-one and one-half inches high. A switch-engine is not a freight car. The words "all cars" in § 2 are not applicable to height of draw-bars. The effect of the act of 1893, and the effect of the amendment of 1903 were misconceived by the Circuit Court of Appeals.

The defendant in error assumed the risk: such was the common-law rule and that doctrine was not abolished by the Federal Employers' Liability Act.

In support of these contentions, see American R. R. Co. v. Birch, 224 U. S. 544; Baker v. Kansas City &c., 129 Pac. Rep. 1151; Bowers v. Southern Ry. Co., 73 S. E. Rep. 679; Burns v. Delaware Tel. Co., 7 N. J. L. 745; California Bank v. Kennedy, 167 U. S. 362; Central Vt. Ry. Co. v. Bethune, 206 Fed. Rep. 868; Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64; Cleveland &c. Ry. v. Bassert, 87 N. E. Rep. 158; Creswill v. Grand Lodge, 225 U. S. 246; Eau Claire Bank v. Jackman, 204 U. S. 522; Employers' Liability Cases, 223 U. S. 6; Freeman v. Powell, 114 S. W. Rep. 1033; Gila Valley Ry. Co. v. Hall, 232 U. S. 94; Gulf &c. Ry. v. McGinnis, 228 U. S. 173; Hammond v. Whitt

234 U. S.

Opinion of the Court.

redge, 204 U. S. 538; Ill. Cent. R. R. Co. v. McKendree, 203 U. S. 514; Johnson v. Railroad Co., 196 U. S. 1; Kan. City Sou. Ry. Co. v. Albers Com. Co., 223 U. S. 573; Kizer v. Texarkana Ry. Co., 179 U. S. 199; Louis. & Nash. R. R. Co. v. Lankford, 209 Fed. Rep. 321; McCormick v. Market Bank, 165 U. S. 538; Mich. Cent. R. R. Co. v. Vreeland, 227 U. S. 59; Mondou v. N. Y., N. H. & H. R. Co., 223 U. S. 1; Neil v. Idaho, 125 Pac. Rep. 331; Neilson v. Lagow, 12 How. 98; Nutt v. Knut, 200 U. S. 12; Pennell v. Phila. & R. Ry. Co., 231 U. S. 675; Rector v. City Deposit Bank Co., 200 U. S. 405; St. L., I. M. & S. R. Co. v. Taylor, 210 U. S. 281; St. L., I. M. & S. R. Co. v. McWhirter, 229 U. S. 275; St. L., S. F. & T. R. Co. v. Seale, 229 U. S. 156; San Jose Land Co. v. San Jose Ranch Co., 189 U. S. 177; Schlemmer v. Buffalo, R. & P. R. Co., 220 U. S. 590; Seaboard Air Line v. Duvall, 225 U. S. 477; Seaboard Air Line v. Moore, 228 U. S. 433; Southern Ry. Co. v. Gadd, 207 Fed. Rep. 277; Swafford v. Templeton, 185 U. S. 487; Tex. & Pac. Ry. Co. v. Archibald, 170 U. S. 665; Tex. & Pac. Ry. Co. v. Swearingen, 196 U. S. 51; Un. Pac. R. R. Co. v. O'Brien, 161 U. S. 451; Un. Pac. R. R. Co. v. Fuller, 202 Fed. Rep. 45; Worthington v. Elmer, 207 Fed. Rep. 306.

Mr. J. A. Fowler, Mr. A. C. Grimm and Mr. H. G. Fowler for defendant in error.

MR. JUSTICE PITNEY delivered the opinion of the court.

Crockett, the defendant in error, brought this action in the Circuit Court of Knox County, Tennessee, to recover damages for personal injuries sustained by him while in the employ of the Railway Company. The action was based upon the Federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65, in connection with the Safety Appliance Act of March 2, 1893, c. 196, 27 Stat.

Opinion of the Court.

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531, and the amendments of 1896 and 1903, c. 87, 29 Stat. 85; c. 976, 32 Stat. 943. He recovered a judgment in the trial court, which was affirmed by the Court of Civil Appeals. A petition for a writ of certiorari being presented to the Supreme Court of Tennessee, that court dismissed the petition and affirmed the judgment.

The facts, so far as material, are as follows: Defendant was an interstate carrier by railroad, and plaintiff was in its employ as a switchman and was engaged in a movement of interstate commerce at the time he was injured. The date of the occurrence was October 15, 1910. In making up a freight train, a switch-engine, with a freight car attached, was being moved down grade towards where other freight cars were standing upon the track, when the single car became uncoupled from the engine, and, being propelled by gravity towards the standing cars, came into contact with them. Plaintiff, being upon the car which thus became uncoupled, was by the impact thrown against the brake and injured. He insisted that the car became detached from the engine because of the defective condition of the track at that point, in conjunction with the insufficient height of the draw-bar on the engine. There was evidence tending to show that the ground upon which the track rested was wet and marshy, and the cross-ties broken and insufficient, so that the track was uneven and rough, and that, as a result, the engine and the car attached to it were made to alternately rise and fall at the ends where they were coupled together; and tending further to show that the draw-bar upon the engine, which was used in coupling the car to it, was not more than thirty inches high, measured from the track to the center of the draw-bar; that it was too low to engage properly with the couplers of ordinary freight cars, and that because of the resulting inadequacy of the coupling, together with the unevenness of the track, the car in question became detached. There was, however, evidence

tending to show that plaintiff knew of the defective condition of the track and of the engine; that he had passed over the same track frequently with the same engine, and that prior to the occurrence in question cars had, as he knew, repeatedly become detached from the engine because of the conditions mentioned. It was either found or assumed by the state courts that defendant's railway was of standard gauge, and that the standard height of draw-bars for freight cars ranged between a maximum of 341⁄2 inches and a minimum of 311⁄2 inches. See Resolution of Interstate Commerce Commission, June 6, 1893 (Ann. Rep. I. C. C., 1893, pp. 74, 263), construed in St. Louis & Iron Mountain Ry. v. Taylor, 210 U. S. 281, 286; see also, Ann. Rep. I. C. C., 1896, p. 94. It should be noted that the alleged cause of action arose October 15, 1910, after the enactment of the amendment of that year to the Safety Appliance Act, but before the taking effect of the Commission's order respecting draw-bars, made pursuant to the new law. This order while dated October 10, 1910, became effective on December 31 following.

Defendant requested the trial court to direct a verdict in its favor, upon the ground that plaintiff admittedly knew of the defects and therefore assumed the risk. The court refused the motion, and likewise refused the request of defendant for an instruction to the jury in the following terms: "If the jury should find from the evidence that the draw-bar of the engine was defective by being too low, or the track defective, and that this caused the engine to become detached from the cars, and this caused the plaintiff's injury, still, if you should further find that these defective conditions had existed prior to that time with the knowledge of the plaintiff, and plaintiff knew before he went to work that the defect existed at that time and that by reason thereof the engine had been accustomed to become uncoupled, and he appreciated the danger, then the court charges you that under those facts the plaintiff

Opinion of the Court

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could not recover, and your verdict should be in favor of the defendant."

The contentions of defendant, overruled by each of the state courts and here renewed, are, that by the true interpretation of the Employers' Liability Act the commonlaw rule respecting the assumption of risk was not abolished except in cases where the violation by the carrier of some statute enacted for the safety of employés contributed to the injury of the employé; and that by the Safety Appliance Act and amendments, as properly interpreted, the height or construction of the draw-bars of locomotives was not regulated, so that the fact that the draw-bar in question was only thirty inches high was not a violation of these acts, and hence afforded no ground for a recovery under the Employers' Liability Act.

There is a motion to dismiss, based upon the insistence that the record presents no question reviewable in this court under § 237, Jud. Code (act of March 3, 1911, c. 231, 36 Stat. 1087, 1156). The motion must be overruled, upon the authority of St. Louis & Iron Mountain Ry. v. Taylor, 210 U. S. 281, 293; Seaboard Air Line Ry. v. Duvall, 225 U. S. 477, 486; St. Louis, Iron Mountain & Southern Ry. v. McWhirter, 229 U. S. 265; Seaboard Air Line v. Horton, 233 U. S. 492, 499.

Upon the merits, we of course sustain the contention that by the Employers' Liability Act the defence of assumption of risk remains as at common law, saving in the cases mentioned in § 4, that is to say: "any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé." Seaboard Air Line v. Horton, 233 U. S. 492, 502.

This leaves for determination the question whether the provision of § 5 of the Safety Appliance Act of 1893 respecting the standard height of draw-bars, together with the order of the Interstate Commerce Commission promul