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SCHLEMMER V. BUFFALO, ROCHESTER & PITTSBURGH RY. CO., 205 U. S. 1 (1907)

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U.S. Supreme Court

Schlemmer v. Buffalo, Rochester & Pittsburgh Ry. Co., 205 U.S. 1 (1907)

Schlemmer v. Buffalo, Rochester

& Pittsburgh Railway Company

No. 41

Argued January 18, 21, 1907

Decided March 4, 1907

205 U.S. 1

Syllabus

Statements of a witness, although based on hearsay, constitute evidence in the cause unless seasonably objected to as hearsay.

The provisions of § 2 of the Safety Appliance Act of March 2, 1893, as amended April 1, 1896, declaring it to be unlawful for any common carrier engaged in interstate commerce to haul or permit to be hauled or used on its line any car used in moving interstate commerce not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars, relate to all kinds of cars running on the rails, including locomotives and steam shovel cars. Johnson v. Southern Pacific Co., 196 U. S. 1.

The object of that statute was to protect the lives and limbs of railroad employees by rendering it unnecessary for men operating the couplers to go between the ends of the cars, and the words "used in moving interstate traffic" occurring therein are not to be taken in a narrow sense.

In a suit based upon the Safety Appliance Act of March 2, 1893, as amended April 1, 1896, the plaintiff is not called upon to negative the proviso of § 6 of said act either in his pleadings or proofs. Such proviso merely creates an exception, and if the defendant wishes to rely thereon, the burden is upon it to bring itself within the terms of the exception; those who set up such an exception must establish it.

Where a federal question is duly raised at the proper time and in a proper manner in the state court and the judgment of the state court necessarily chanroblesvirtualawlibrary

Page 205 U. S. 2

involves the decision of such question, this Court, on writ of error, will review such judgment although the state court, in its opinion, made no reference to the question. And if it is evident that the ruling of the state court 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.

Assumption of risk as extended to dangerous conditions of machinery, premises, and the like, obviously shades into negligence as commonly understood. The difference between the two is one of degree, rather than of kind.

Section 8 of the Automatic Coupler Act having exonerated the employee from assumption of risk under specified conditions, the employee's rights in that regard should not be sacrificed by charging him with assumption of risk under another name, for example, with contributory negligence.

In this case, the so-called contributory negligence of the deceased employee was so involved with and dependent upon erroneous views of the statute that the judgment complained of must be reversed.

207 Pa.St. 198 reversed.

The facts are stated in the opinion. chanroblesvirtualawlibrary

Page 205 U. S. 8





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