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Opinion of the Court.

244 U.S.






Nos. 239, 240. Submitted April 30, 1917.-Decided June 4, 1917.

In an action under the Federal Employers' Liability Act the questions

whether plaintiff was engaged in interstate commerce when injured, whether the railroad was negligent, whether he assumed the risk, and whether he was a mere volunteer, will not evoke discussion by this court where there was adequate evidence upon them for submission to the jury, where there was no evident, material error in the charge, where both state courts below have sustained the judgment, and no

special circumstances are present demanding comment. The Federal Employers' Liability Act does not allow the father a right

of action for expenses and loss of service resulting from his minor

son's injuries in addition to the son's right of action. The rights of action provided by the Federal Employers' Liability Act

are exclusive as to the cases which it covers and no other can be added by the law of a State. New York Central R. R. Co. v. Winfield,

ante, 147. 87 N. J. L. 651, affirmed in part and reversed in part.

The case is stated in the opinion.

Mr. Albert C. Wall and Mr. John A. Hartpence for plaintiff in error.

Mr. Alexander Simpson for defendants in error.

MR. JUSTICE McREYNOLDS delivered the opinion of the court.

By stipulation, these causes were tried together before the same jury and upon the same testimony. Michael

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Tonsellito, an infant seventeen years old, suing by his father, James Tonsellito, as next friend and relying upon the Federal Employers' Liability Act, obtained a judgment for personal injuries suffered while employed by plaintiff in error-Number 239. These injuries, he alleged, resulted from negligence in constructing and maintaining its road-bed and in starting a locomotive without giving him a reasonable opportunity to climb thereon. James Tonsellito recovered for himself on account of expenses incurred for medical attention to his son and loss of the latter's services—Number 240. Both judgments were affirmed by the Court of Errors and Appeals. 87 N. J. L. 651.

Reversal is asked in the cause instituted by Michael Tonsellito because (1) he was not engaged in interstate commerce when injured; (2) no negligence by the railroad was shown; (3) he assumed the risk; and (4) he was a mere volunteer when the accident occurred. We think there was adequate evidence to justify submission of all these matters to the jury; and we are unable to say the charge contains material error. Both state courts have sustained the judgment; there are no special circumstances demanding comment; and it seems enough to announce our conclusion. Great Northern Ry. Co. v. Knapp, 240 U. S. 464, 466; Erie Railroad Co. y. Welsh, 242 U. S. 303.

The Court of Errors and Appeals ruled, and it is now maintained, that the right of action asserted by the father existed at common law and was not taken away by the Federal Employers' Liability Act. . But the contrary view, we think, is clearly settled by our recent opinions in New York Central R. R. Co. v. Winfield ante, 147, and Erie Railroad Co. v. Winfield, ante, 170. There we held the act "is comprehensive and, also, exclusive" in respect of a railroad's liability for injuries suffered by its employees while engaging in interstate commerce. establishes a rule or regulation which is intended to op


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erate uniformly in all the States, as respects interstate commerce, and in that field it is both paramount and exclusive.” Congress having declared when, how far, and to whom carriers shall be liable on account of accidents in the specified class, such liability can neither be extended nor abridged by common or statutory laws of the State. The judgment in Number 239 is


In Number 240 the judgment below is reversed and the cause remanded for further proceedings not inconsistent with this opinion.


MR. JUSTICE BRANDEIS concurs in the result announced in No. 240.




No. 604. Submitted April 11, 1917.-Decided June 4, 1917.

The Fifth Amendment does not relieve a witness from answering

merely on his own declaration or judgment that an answer might incriminate him; whether he must answer is determinable by the trial court in the exercise of its sound discretion; and unless there is reasonable ground, as distinct from a remote or speculative possibility, to apprehend that a direct answer may prove dangerous to the

witness, his answer should be compelled. In the absence of manifest error, the ruling of a trial judge upon a

witness' objection that an answer may incriminate him, will not be

reversed by this court. Affirmed.

The case is stated in the opinion.

244 U.S.

Opinion of the Court.

Mr. George B. Grigsby for plaintiffs in error.

The Solicitor General and Mr. Robert Szold for the United States.

MR. JUSTICE McREYNOLDS delivered the opinion of the court.

Plaintiffs in error were separately called to testify before a Grand Jury at Nome, Alaska, engaged in investigating a charge of gambling against six other men. Both were duly sworn. After stating that he was sitting at a table in the Arctic Billiard Parlors when these men were there arrested, Mason refused to answer two questions, claiming so to do might tend to incriminate him. (1) “Was there a game of cards being played on this particular evening at the table at which you were sitting?” (2) “Was there a game of cards being played at another table at this time?” Having said that at the specified time and place he, also, was sitting at a table, Hanson made the same claim and refused to answer two questions. (1) "If at this time or just prior to this time that yourself and others were arrested in the Arctic Billiard Parlors if you saw any one there playing 'stud poker' or 'pangingi'?(2) “If at this same time you saw any one playing a game of cards at the table at which you were sitting?”

The foreman of the Grand Jury promptly reported the foregoing facts and the judge at once heard the recalcitrant witnesses; but as the record contains no detailed statement of what then occurred we cannot know the exact circumstances. The court, being of opinion “that each and all of said questions are proper and that the answers thereto would not tend to incriminate the witnesses," directed them to return before the Grand Jury and reply. Appearing there, Mason again refused to answer the first question propounded to him, but, half

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yielding to frustration, said in response to the second, “I don't know.” Hanson refused to answer either question.

A second report was presented by the foreman; the witnesses were once more brought into court; and after hearing evidence adduced by both sides and arguments of counsel they were adjudged in contempt. It was further ordered "that they each be fined in the sum of one hundred dollars, and that they each be imprisoned until they comply with the orders of the court by answering the questions.” Immediately following this order they made answers, but these are not set out in the record. The fines are unpaid; and we are asked to reverse the trial court's action in undertaking to impose them because it conflicts with the inhibition of the Fifth Amendment that no person shall be compelled in any criminal case to be a witness against himself.?'

During the trial of Aaron Burr, In re Willie, 25 Fed. Cas. No. 14,692e, pp. 38, 39, the witness was required to answer notwithstanding his refusal upon the ground that he might thereby incriminate himself. Chief Justice Marshall announced the applicable doctrine as follows: "When two principles come in conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent. The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. They are believed both to be preserved to a reasonable extent, and according to the true intention of the rule and of the exception to that rule, by observing that course which it is conceived courts have generally observed. It is this: When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the

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