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U.S. Supreme Court

Schlemmer v. Buffalo, Rochester & Pittsburgh Ry. Co., 220 U.S. 590 (1911)

Schlemmer v. Buffalo, Rochester

and Pittsburgh Railway Company

No. 374

Argued April 3, 1911

Decided May 15, 1911

220 U.S. 590


Where on writ of error the case is reversed on the federal question and remanded to the highest state court for further proceedings in conformity with the opinion of this Court, the state court should, in its remittitur require the further proceedings by the lower court to be in conformity with the opinion of this Court, as the matter involved is a federal right within the protection of this Court.

If, however, the trial court on the second trial of a case reversed by this Court on the federal question does give to the statute involved the construction and effect given by this Court, the judgment will not be reversed because the remittitur from the highest court to which the mandate of this Court was sent did not specifically direct that further proceedings be had in conformity with the opinion of this Court.

The Safety Appliance Acts of March 2, 1893, c.196, 27 Stat. 531; April 1, 1896, c. 87, 29 Stat. 85; March 2, 1903, c. 976, 32 Stat. 943, took away from the carrier the defense of assumption of risk by the employee, but did not affect the defense of contributory negligence.

There is a practical and clear distinction between assumption of risk and contributory negligence. By the former, the employee assumes the risk of ordinary dangers of occupation and those dangers that are plainly observable; the latter is the omission of the employee to use those precautions for his own safety which ordinary prudence requires.

Under the Safety Appliance Acts, an employee does not, by reason of his knowledge of the fact, take upon himself the risk of injury from a car unequipped as required by the acts; but he is not absolved from duty to use ordinary care for his own protection merely because the carrier has failed to comply with the law, and, in the absence of legislation taking it away, the defense of contributory negligence is open.

On the record in this case, there appears to have been contributory chanroblesvirtualawlibrary

Page 220 U. S. 591

negligence on the part of plaintiff's intestate, apart from the question of assumption of risk, and the state court denied plaintiff no federal right under the Safety Appliance Acts in dismissing the complaint on the ground of contributory negligence.

222 Pa. 470 affirmed.

The facts, which involve the construction of the Safety Appliance Acts and the duties and rights of carriers and of their employees thereunder, are stated in the opinion.

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