Opinion
Argued February 14, 1933 —
Decided April 28, 1933.
1. The Federal Employers' Liability act does not define negligence, so that the principles of common law control, and under that statute a carrier is liable for the negligence of any of its employes.
2. The doctrine of res ipsa loquitur applies to actions arising under the Federal Employers' Liability act, and where an injury is occasioned by the dropping of a brake-stick by a fellow employe, it raises a presumption of negligence, and requires the submission to the jury of the question whether, in fact, such employe, under all the circumstances, used due care for the safety of the injured man.
3. The doctrine of assumption of risk is not a defense to an action under the Federal act, where the negligence of a fellow servant could not have been foreseen, or expected, by the injured party, as the sole, direct and immediate cause of his injury.
On appeal from the Supreme Court, in which the following per curiam was filed:
"The action was brought under the Federal Employers' Liability act (45 U.S. Code Annotated, § 51 et seq.), because of injuries sustained by plaintiff on October 15th, 1930, while employed by defendant in interstate commerce, as a brakeman, or `car cutter,' at the Greenville yards, Jersey City. He was struck by a brake-stick which fell from the hands of a fellow employe. It appears that the plaintiff, the conductor, and another brakeman were engaged in their usual duties in shifting cars. Plaintiff was standing ready to pull the pin in order to uncouple some cars, when the brakeman, who was climbing up on one of the cars to give a signal, dropped his brake-stick, striking the plaintiff and causing the injuries complained of.
"The failure to nonsuit and direct a verdict for the defendant seem the only question before us by appropriate exception.
"The act in question does not define negligence, so it has been repeatedly held that the principles of the common law control. 45 U.S. Code Annotated 179. The carrier is liable for the negligence of any of its employes. Grijunk v. McAdoo, 95 N.J.L. 256. The doctrine of res ipsa loquitur applies to cases arising under the statutes. 45 U.S. Code Annotated 210. The dropping of an object raises a presumption of lack of care in the person who drops the same. Sheridan v. Foley, 58 N.J.L. 230; Higgins v. Goerke Krich Co., 91 Id. 464.
"The brakeman's stick would not have fallen but for some act or failure to act on his part. The fact that it was raining; that he slipped when going up the side of the car; that he wore gloves and carried a lantern were all circumstances for the jury to consider in determining whether he exercised due care for the safety of a fellow workman who he knew was standing below ready to receive his signal.
"`In actions under the Federal act the doctrine of assumption of risk certainly has no application when the negligence of a fellow servant which the injured party could not have foreseen or expected as the sole, direct and immediate cause of the injury. To hold otherwise would conflict with the declaration of congress that every common carrier by railroad while engaging in interstate commerce shall be liable to the personal representative of any employe killed, while employed therein, when death results from the negligence of any of the officers, agents or employes of such carriers.' Reed v. Director-General, 258 U.S. 92, 94.
"It was pointed out that the question of whether the court properly charged on the question of assumption of risk was not before us, but if it were it seems to us that the rule as above stated was substantially charged.
"The judgment is affirmed."
Messrs. Wall, Haight, Carey Hartpence, for the appellant.
Messrs. Degheri Ormsby ( Mr. Edward A. Markley, Mr. Bernard M. Degheri and Mr. Alexander F. Ormsby, of counsel), for the respondent.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion delivered by the Supreme Court.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 11.
For reversal — None.