§ 523. Contributory negligence distinguished from assumption of risk.-The Schlemmer Case, supra, came again before the supreme court, 220 U. S. 590, 55 L. Ed. (1911), on a writ of error from a second trial where judgment was rendered for the defendant, affirmed by the supreme court of Pennsylvania, 220 Pa. 470. The supreme court affirmed the judgment of the Pennsylvania court, which in turn had affirmed the judgment of the trial court, which had entered a judgment for the defendant, notwithstanding a verdict of the jury for the plaintiff on the issue of contributory negligence. This was on the ground that a clear cause of contributory negligence was presented in that the decedent not only attempted to make the coupling in a dangerous way when his attention was directly called to a safe way, but also did it with reckless disregard of his personal safety by raising his head, though twice expressly cautioned at the time as to the danger of so doing.

The supreme court said that the statute at the time of the injury complained of took away the defense of assumption of risk but did not deal with the defense of contributory negligence, and that while assumption of risk sometimes shades into negligence as commonly understood there is, nevertheless, the practical and clear distinction between the two. Assumption of risk means that an employe is held to assume the risk of the ordinary dangers of the occupation into which he is about to enter, and those risks and dangers which are known or are so plainly observable that the employe may be presumed to know of them; and if he continues in the master's employ without objection he takes upon himself the risk of injury from his defects. Contributory negligence, on the other hand, is the omission of the employe to take those precautions for his own safety which ordinary prudence requires. Under the statute, therfore, when Schlemmer saw that the car was not equipped with an automatic coupler he would not from that knowledge alone take upon himself the risk of injury without liability from his employer; but he was not for that reason absolved from the duty of using ordinary care for his own protection under the circumstances as they existed. No federal right, therefore, was denied in the ruling of the state court, directing a judgment for the defendant.

In this case the court called attention to the third section of the Employer's Liability Act of 1908, which was enacted after

the injury in this case, which provided that no employe was guilty of contributory negligence in any case where violation by a common carrier of any statute enacted for the safety of employes, contributed to the injury or death of such employes. See infra.

§ 524. Responsibility of carrier for cars out of conditionPrior to the decision of the supreme court in the Delk Case there was a difference of judicial opinion as expressed in the circuit courts as to the responsibility of the carrier when a car equipped with automatic apparatus is out of order, and is being used for switching purposes on a side track where it is placed for repairs. See Sigel v. N. Y. C. & H. R. Co., N. D. of Pa., 178 Fed. 873 (1910), and also the opinion of the majority of the court of appeals of the sixth circuit in the Delk Case, 158 Fed. 931 (1908); but it is definitely determined by the judgment of the supreme court that the absolute duty of the carrier extends to the maintenance in good condition at all times of the coupling apparatus required by the statute.

AMENDMENT OF 1903 TO SAFETY ACT.

§ 525. Amendment of 1903.

AN ACT To amend an Act entitled "An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with au tomatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes," approved March second, eighteen hundred and ninety-three, and amended April first, eighteen hundred and ninety-six.

§ 525 (374). Amendment of 1903.-Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions and requirements of the Act entitled "An Act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with driving-wheel brakes, and for other purposes," approved March second, eighteen hundred and ninety-three, and amended April first, eighteen hundred and ninety-six, shall be held to apply to common carriers by railroads in the Territories and the District of Columbia and shall apply in all cases, whether or not the couplers brought together are of the same kind, make, or type; and the provisions and requirements hereof and of said acts relating to train brakes, automatic couplers, grab irons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and in the Territories and the District of Columbia, and to all other locomotives, tenders, cars, and similar vehicles used in connection therewith, excepting those trains, cars, and locomotives exempted by the provisions of section six of said act of March second, eighteen hundred and ninety-three, as amended by the act of April first, eighteen hundred and ninetysix, or which are used upon street railways.

SEC. 2. That whenever, as provided in said act, any train is operated with power or train brakes, not less than fifty per centum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all power-brake cars in such train which are associated together with said fifty per centum shall have their brakes so used and operated; and, to more fully carry into effect the objects of said act, the Interstate Commerce Commission may, from time to time, after full hearing, increase the minimum percentage of the cars in any train required to be operated with

power or train brakes which must have their brakes used and operated as aforesaid; and failure to comply with any such requirement of the said Interstate Commerce Commission shall be subject to the like penalty as failure to comply with any requirement of this section.

SEC. 3. That the provisions of this act shall not take effect until September first, nineteen hundred and three. Nothing in this act shall be held or construed to relieve any common carrier, the Interstate Commerce Commission, or any United States district attorney from any of the provisions, powers, duties liabilities, or requirements of said act of March second, eighteen hundred and ninety-three, as amended by the act of April first, eighteen hundred and ninety-six; and all of the provisions, powers, duties, requirements and liabilities of said act of March second, eighteen hundred and ninety-three, as amended by the act of April first, eighteen hundred and ninety-six, shall, except as specifically amended by this act, apply to this act.

As to the effect of this amendment under the construction of section 2, see decision of the supreme court in the Schlemmer Case, where it was held that this act indicated the intent of the original act in the construction of section 2.

AN ACT To supplement "An Act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving wheel brakes and for other purposes," and other safety appliance Acts, and for other purposes.

Be it enacted by the Senate and House of Representatives of [To what carriers applicable.]

the United States of America in Congress assembled, That the provisions of this Act shall apply to every common carrier and every vehicle subject to the Act of March second, eighteen hundred and ninety-three, as amended April first, eighteen hundred and ninety-six, and March second, ninteen hundred and three, commonly known as the "Safety Appliance Acts."

[When act effective.]

SEC. 2. That on and after July first, nineteen hundred and eleven, it shall be unlawful for any common carrier subject to the provisions of this Act to haul, or permit to be hauled or used on its line any car subject to the provisions of this Act not equipped with appliances provided for in this Act, to wit:

[Cars to be equipped with sill steps, hand brakes, lad-
ders, running boards, and grab irons.]

All cars must be equipped with secure sill steps and efficient hand brakes; all cars requiring secure ladders and secure running boards shall be equipped with such ladders and running boards, and all cars having ladders shall also be equipped with secure hand holds or grab irons on their roofs at the tops of such ladders: Provided, That in the loading and hauling of long commodities, requiring more than one car, the hand brakes may be omitted on all save one of the cars while they are thus combined for such purpose.

[Commission to designate number, dimensions, location,
and manner of application of appliances.]

SEC. 3. That within six months from the passage of this Act the Interstate Commerce Commission, after hearing, shall designate the number, dimensions, location, and manner of application of the appliances provided for by section two of this Act and section four of the Act of March second, eighteen hundred and ninety-three, and shall give notice of such designation to all common carriers subject to the provisions of this Act by such [609]

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