Argument for Defendant in Error.

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effect that, except in cases in which both the evidence and all inferences which may be drawn therefrom are all one way, questions of negligence and contributory negligence are for the jury. Esher v. Mineral R. & Min. Co., 28 Pa. Super. Ct. 387; Kilkeary v. Thackery, 165 Pa. 584; Hogan v. West Mahony Tp. &c. Co., 174 Pa. 352; Fetterman v. Rush Twp., 28 Pa. Super. Ct. 7.

Mr. M. E. Olmsted, with whom Mr. C. H. McCauley and Mr. A. C. Stamm were on the brief, for defendant in error:

The state court having decided the case upon the ground of contributory negligence, which does not present a Federal question, its judgment would not be reviewable here even though another issue, presenting a Federal question, had been squarely raised.

Even though a Federal question had been squarely raised in the Supreme Court of Pennsylvania, nevertheless, as the defense of contributory negligence was found by that court to be a complete defense, it would have been unnecessary for it to pass upon the Federal question and its failure to do so could not have been assigned as error here. Adams County v. Burlington & Missouri R. R. Co., 112 U. S. 123; Chouteau v. Gibson, 111 U. S. 200; Murdock v. Memphis, 20 Wall. 590, 636. See also Jenkins v. Loewenthal, 110 U. S. 222.

Where the Supreme Court of a State decides a Federal question, in rendering a judgment, and also decides against the plaintiff in error on an independent ground not involving a Federal question, and broad enough to maintain the judgment, the writ of error will be dismissed, without considering the Federal question. Hale v. Akers, 132 U. S. 554; McManus v. O'Sullivan, 91 U. S. 578; Brown v. Atwell, 92 U. S. 327; Citizens' Bank v. Board of Liquidation, 98 U. S. 140; Chouteau v. Gibson, 111 U. S. 200; Adams County v. Burlington & Missouri Railroad, 112 U. S. 123; Detroit City Railway v. Guthard, 114 U. S. 133; New Orleans Water Works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18; De Saussure v. Gaillard, 127 U. S. 216, 234. The trial judge having declared that upon plaintiff's own

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Argument for Defendant in Error.

evidence she was not entitled to recover because of the contributory negligence of the deceased; and the Supreme Court of Pennsylvania having affirmed the judgment upon that ground alone, there is nothing to which the jurisdiction of this court can attach.

Assumption of risk and contributory negligence are separate and distinct defenses. The act of 1893 relates to the former only. It does not take away the latter.

Under the law of Pennsylvania, plaintiff would not be entitled to recover even if the deceased had not been guilty of contributory negligence, because it is the law of that State that an employé assumes the risks incident to the discharge of his duties, even though those duties are hazardous, if he has had an opportunity to ascertain their dangerous character. Patterson v. R. R. Co., 76 Pa. St. 389; Pittsburgh & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. St. 276.

The act of 1893 does not apply to this case at all; but if it did it simply took away from defendant that single ground of defense, namely, the assumption of risk by the employé.

Recovery by a plaintiff is precluded where his or her own negligence has proximately contributed to his or her own injury. Washington & Georgetown R. R. Co. v. McDade, 135 U. S. 554; 7 Am. & Eng. Enc. of Law, 371; Sunney v. Holt, 15 Fed. Rep. 880; Motey v. Pickle M. & G. Co., 74 Fed. Rep. 155.

Although under the act of 1893, where applicable, an employé will not be deemed to have assumed the risk of the employment, nevertheless he must act-in such manner that injury shall not befall him as the result of his own fault or imprudence. The distinction between "assumption of risk' and "contributory negligence" has always been clearly drawn. C. O. & G. R. R. v. McDade, 191 U. S. 64; Narramore v. Ry. Co., 96 Fed. Rep. 298; St. Louis Cordage Co. v. Miller, 126 Fed. Rep. 495; Hesse v. R. R. Co., 58 Ohio St. 167; Miner v. R. R. Co., 153 Massachusetts, 398.

The provision in the act of 1893 that no employé of a common carrier, who may be injured by any car in use contrary to

the provisions requiring automatic couplers, shall be deemed to have assumed the risk occasioned thereby, can have no effect on the general principle of law that recovery by a plaintiff is precluded where his own negligence has proximately contributed to, and, as in this case, caused, his own injury. Winkler v. Phila. & R. R. R., 53 Atl. Rep. 90; C. C. C. & St. L. Ry. Co. v. Baker, 91 Fed. Rep. 224; D. & R. G. R. R. Co. v. Arrighi, 129 Fed. Rep. 347; Narramore v. C. C. C. & St. L. R. R., 96 Fed. Rep. 298; L. E. & W. Ry. Co. v. Craig, 73 Fed. Rep. 642; Hodges v. Kimball, 104 Fed. Rep. 745; Dixon v. W. U. Tel. Co., 68 Fed. Rep. 630; Kilpatrick v. Grand Trunk Ry. Co., 27 Am. & Eng. R. R. Cases, 945.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action for the death of the plaintiff's intestate, Adam M. Schlemmer, while trying to couple a shovel car to a caboose. A nonsuit was directed at the trial and the direction was sustained by the Supreme Court of the State. The shovel car was part of a train on its way through Pennsylvania from a point in New York, and was not equipped with an automatic coupler in accordance with the act of March 2, 1893, c. 196, § 2, 27 Stat. 531. Instead of such a coupler it had an iron drawbar fastened underneath the car by a pin and projecting about a foot beyond the car. This drawbar weighed about eighty pounds and its free end played up and down. On this end was an eye, and the coupling had to be done by lifting the free end, possibly a foot, so that it should enter a slot in an automatic coupler on the caboose and allow a pin to drop through the eye. Owing to the absence of buffers on the shovel car and to its being so high that it would pass over those on the caboose, the car and caboose would crush any one between them if they came together and the coupling failed to be made. Schlemmer was ordered to make the coupling as the train was slowly approaching the caboose. To do so he had to get between the, cars, keeping below the level of the bottom of the

shovel car. It was dusk and in endeavoring to obey the order and to guide the drawbar he rose a very little too high, and, as he failed to hit the slot, the top of his head was crushed. The plaintiff in her declaration alleged that the defendant was transporting the shovel car from State to State and that the coupler was not such as was required by existing laws. At the trial special attention was called to the United States statute as part of the plaintiff's case. The court having directed a nonsuit with leave to the plaintiff to move to take it off, a motion was made on the ground, among others, "that under the United States statute, specially pleaded in this case, the decedent was not deemed to have assumed the risk owing to the fact that the car was not equipped with an automatic coupler." The question thus raised was dealt with by the court in overruling the motion. Exceptions were allowed and an appeal taken. Among the errors assigned was one "in holding that the shovel car was not a car used in interstate commerce or any other kind of traffic," the words of the court below. The Supreme Court affirmed the judgment in words that we shall quote. We are of opinion that the plaintiff's rights were saved and that we have jurisdiction of the case, subject to certain matters that we shall discuss.

On the merits there are two lesser questions to be disposed of before we come to the main one. A doubt is suggested whether the shovel car was in course of transportation between points in different States, and also an argument is made that it was not a car within the contemplation of $2. On the former matter there seems to have been no dispute below. The trial court states the fact as shown by the evidence, and testimony that the car was coming from Limestone, New York, is set forth, which, although based on the report of others, was evidence, at least unless objected to as hearsay. Damon v. Carrol, 163 Massachusetts, 404, 408, 409. It was the testimony of the defendant's special agent employed to investigate the matter.

The latter question is pretty nearly answered by Johnson v.

Southern Pacific Co., 196 U. S. 1, 16. As there observed, "Tested by context, subject matter and object, 'any car' meant all kinds of cars running on the rails, including locomotives." "The object was to protect the lives and limbs of railroad employés by rendering it unnecessary for a man operating the couplers to go between the ends of the cars." These considerations apply to shovel cars as well as to locomotives, and show that the words "used in moving interstate traffic" should not be taken in a narrow sense. The later act of March 2, 1903, c. 976, 37 Stat. 943, enacting that the provision shall be held to apply to all cars and similar vehicles, may be used as an argument.on either side, but in our opinion indicates the intent of the original act. 196 U. S. 21. There was an error on this point in the decision below.

A faint suggestion was made that the proviso in § 6 of the act, that nothing in it shall apply to trains composed of fourwheel cars, was not negatived by the plaintiff. The fair inference from the evidence is that this was an unusually large car of the ordinary pattern. But, further, if the defendant wished to rely upon this proviso, the burden was upon it to bring itself within the exception. The word "provided" is used in our legislation for many other purposes beside that of expressing a condition. The only condition expressed by this clause is that four-wheeled cars shall be excepted from the requirements of the act. In substance it merely creates an exception, which has been said to be the general purpose of such clauses. Interstate Commerce Commission v. Baird, 194 U. S. 25, 36, 37. "The general rule of law is, that a proviso carves special exceptions only out of the body of the act; and those who set up any such exception must establish it," etc. Ryan v. Carter, 93 U. S. 78, 83. United States v. Diron, 15 Peters, 141, 165. The rule applied to construction is applied equally to the burden of proof in a case like this. United States v. Cook, 17 Wall. 168; Commonwealth v. Hart, 11 Cush. 130, 134.

We come now to the main question. The opinion of the Supreme Court was as follows: "Whether the Act of Congress