ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA.
MR. JUSTICE DAY delivered the opinion of the court.
This action was brought in a Pennsylvania court to recover for wrongfully causing the death of Adam M. Schlemmer, plaintiff's intestate, as a result of injuries received while in the employ of the railroad company. The case has been once before in this court, and is reported in 205 U.S. 1, 13. The injury was received while Schlemmer, an employe of the defendant railroad company, was endeavoring to couple a shovel car to the caboose of one of the railroad trains of the defendant company.
Before the case first came here the Supreme Court of Pennsylvania had held that the plaintiff could not recover damages because of the contributory negligence of the deceased. 207 Pa. 198. This court reversed the Supreme Court of Pennsylvania, and remanded the case for further proceedings in conformity with the opinion of this court.
For a proper understanding of the case a brief statement
of the facts will be necessary. The shovel car was not equipped with an automatic coupler as required by the act of March 2, 1893, c. 196, § 2, 27 Stat. 531, and that fact was the basis of the action for damages. The shovel car had an iron drawbar, weighing somewhere about eighty pounds, protruding beyond the end of the shovel car. The end of this drawbar had a small opening, or eye, into which an iron pin was to be fitted when the coupling was made; this was to be effected by placing the end of the drawbar into the slot of the automatic coupler with which the caboose was equipped. Owing to the difference in the height, the end of the shovel car would pass over the automatic coupler on the caboose in case of an unsuccessful attempt to make the coupling, and the end of the shovel car would come in contact with the end of the caboose.
Plaintiff's intestate was an experienced brakeman, having been in the service fifteen or sixteen years. At the time when he undertook to couple the train with the shovel car to the end of the caboose, he went under the end of the shovel car and attempted to raise the iron drawbar so as to cause it to fit into the slot of the automatic coupler on the caboose. While so doing his head was caught between the end of the shovel car and the caboose, and he was almost instantly killed. This happened between eight and nine o'clock on an evening in the month of August, and while dusk had gathered it was not very dark, and the testimony tends to show that the situation was plainly observable.
When this case was first before the Supreme Court of Pennsylvania, that court expressed doubt as to whether the act of Congress applied in actions of negligence in the courts of Pennsylvania, and the judgment on the non-suit in the court below was sustained because of the contributory negligence of the deceased.
This court held that the shovel car was in course of
transportation between points of different States, and therefore was being used in interstate commerce; that the shovel car was a car within contemplation of § 2 of the act of Congress; that § 8 of that act had deprived the company of the defense of assumed risk on the part of an employe; that the ruling in the Pennsylvania court upon contributory negligence was so dependent upon an erroneous construction of the statute that it could not stand. 205 U.S. 1, 13. As the alleged right to recover was under a Federal statute, alleged to have been improperly construed against the plaintiff in error, the case presented a claim of Federal right, a denial of which was reviewable here, and the case, for the reason stated, was reversed by this court and sent back for further proceedings in conformity with the opinion of this court.
We find no occasion to depart from the former decision, and will proceed to examine the record as now presented, which, in material respects, differs from the one previously before the court. It is first objected by the plaintiff in error that the Supreme Court of Pennsylvania remanded the case to the lower court for trial contrary to the mandate sent down upon the reversal by this court. The Supreme Court of Pennsylvania remitted the case, after receipt of the mandate from this court, to the lower court to be retried "on the settled principles of contributory negligence, as heretofore declared in the decisions of this court" -- Supreme Court of Pennsylvania. The counsel for ...