Opinion — Erie R. Co. v. Solomon

ERIE RAILROAD v. SOLOMON. 427

237 U.S. Argument for Plaintiff in Error.

ERIE RAILROAD COMPANY »v. SOLOMON.

ERROR TO THE SUPREME COURT OF THE STATE OF OHIO.

Ne. 559. Argued February 24, 1915.—Decided May 10, 1915.

Wriv of error to review the judgment of a state court, in an action for

personal injuries based on the Safety Appliance Law of the State

substantially identical with the Federal law, and affirmed by the

intermediate appellate and the highest court of the State without

opinion, dismissed for want of jurisdiction under § 237, Judicial Code.

Even if the highest court of the State, after affirmance, certified as part

of the record the fact that it had been necessary to consider the Fed-

eral Safety Appliance Act and to determine whether the Ohio Safety

Appliance Act, as construed by the trial court, is not repuguant to

the Fourteenth Amendment, the Federal questions suggested as the

basis for the writ of error in this case are so frivolous as not to afford

jurisdiction under § 237, Judicial Code.

Tue facts, which involve the construction and appli-

cation of the Safety Appliance Act and the jurisdiction

of this court under § 237, Judicial Code, are stated in the

opinion.

Mr. Leroy Manchester, with whom Mr. C. D. Hine was

on the brief, for plaintiff in error:

A right, privilege and immunity from liability was

asserted and denied under the provisions of the Safety

Appliance Act of the United States. The Federal Safety

Appliance Act controls. The coupler satisfies the statute.

A right, privilege, and immunity from liability was

asserted and denied under the Fourteenth Amendment.

In support of these contentions see Atlantic Coast Line

v. United States, 168 Fed. Rep. 175; Binns v. United

States, 194 U. S. 486, 495; Church of Holy Trinity v.

United States, 143 U. S. 457, 463; Chicago, M. & St. P.

Ry. v. Voelker, 129 Fed. Rep. 522; C., B. & Q. R. R. v.

BVP

Ate CEG LEAR ERIE LIRR He ES RRO TE EI a

428 OCTOBER TERM, 1914.

Argument for Plaintiff in Error. 237 U. 8.

United States, 211 Fed. Rep. 12; Chicago &c. Ry. Co. v.

Chicago, 166 U. 8. 226, 241; Chicago, Milw. & St. P. R. R.

v. United States, 165 Fed. Rep. 423; Coggs v. Bernard,

2 Ld. Ray. 911; Devine v. Chicago & C. R. R. (Ill.), 102

N. E. Rep. 803; Davidson v. New Orleans, 96 U. 8. 97,

102; Fayerweather v. Ritch, 195 U. 8. 276; Johnson v.

So. Pac. Co., 196 U. 8. 1; Jacobson v. Massachusetts, 197

U.S. 11; Morris v. St. Louis S. W. Ry. (Texas), 158 8. W.

1055; Pennell v. Phila. & Reading R. R., 231 U.S. 675;

Smyth v. Ames, 169 U. 8. 466; San Diego Land Co. v.

National City, 174 U.S. 739, 754; St. Louis & I. Min. R. R.

v. Taylor, 210 U.S. 281; Siegel v. N. Y. Cent. & H.R. R.,

178 Fed. Rep. 873; Southern Railway v. Crockett, 234

U.S. 725; United States v. Harris, 177 U. 8. 309; Un. Pac.

R. R. v. Brady, 161 Fed. Rep. 719; United States v. Erie

R. R., 197 Fed. Rep. 287; S. C., 212 Fed. Rep. 853; United

States v. Boston & Maine R. R., 168 Fed. Rep. 148; United

States v. Rio Grande Ry. Co., 174 Fed. Rep. 399; United

States vy. Atchison, T. & S. F. Ry., 150 Fed. Rep. 442;

United States v. Illinois Cen. R. R. Co., 170 Fed. Rep. 542,

549; United States v. Kirby, 7 Wall. 482; Wetmore v.

Markoe, 196 U. S. 68, 77.

This court has jurisdiction as Federal questions exist,

and were properly raised.

A right, privilege, and immunity from liability was

asserted and denied under the provisions of the Safety

Appliance Act of March 2, 1893, c. 196, 27 Stat. 531;

as amended by the act of March 2, 1903, 32 Stat. 943,

976; 16 Cyc., 861, and cases cited; Southern Ry. Co. v.

United States, 222 U. 8. 20.

A right, privilege, and immunity from liability was

asserted and denied under the Fourteenth Amendment.

These Federal questions were properly raised. Rector

v. City Deposit Bank, 200 U. 8. 405, 412; Chambers v.

Balt. & Ohio R. R., 207 U. S. 142; San Jose Land v. San

Jose Ranch Co., 189 U. 8. 177; Haire v. Rice, 204 U.S.

ERIE RAILROAD v. SOLOMON. 429

237 U.S. Opinion of the Court.

291; Atchison, T. &c. R. R. v. Sowers, 213 U. S. 55, 63;

Carlson v. Washington, 234 U. S. 103; Arkansas Southern

Ry. v. German Bank, 207 U. 8. 270; Furman v. Nichols,

8 Wall. 44; Crapo v. Kelly, 16 Wall. 610; Andrews v.

Andrews, 188 U. S. 14; Pennywit v. Eaton, 15 Wall. 380;

Louis. & Nash. R. R. v. Higdon, 234 U. 8. 592; Mo. Pac.

Ry. Co. v. Larabee, 234 U. 8. 459; Western Turf Ass’n v.

Greenburg, 204 U.S. 359; Ill. Cent. R. R. v. Chicago, 176

U. 8S. 646; Blythe v. Hinckley, 180 U. S. 333; Meyer v.

Richmond, 172 U. S. 82; East Tenn. &c. Ry. v. Frazier,

139 U.S. 288; Home for Incurables vy. New York, 187 U.S.

155; Eau Claire Bank v. Jackman, 204 U. 8. 522; Ham-

mond v. Whittredge, 204 U. S. 538; Nutt v. Knut, 200

U. 8. 12; McCormick v. Market Bank, 165 U. S. 538;

California Bank v. Kennedy, 167 U.S. 362; Ill. Cent. R. R.

v. McKendree, 203 U. S. 514; St. Louis & I. M. Ry. v.

Taylor, 210 U. S. 281, 293; Southern Ry. v. Crockett, 234

U. S. 725; Nor. Car. R. R. v. Zachary, 232 U. S. 248;

Miedreich v. Lauenstein, 232 U. 8. 236; Grannis v. Ordeau,

234 U.S. 385; International Harvester Co. v. Missouri, 234

U.S. 199; Louis. & Nash. R. R. v. Higdon, 234 U.S. 592.

Mr. Emil J. Anderson for defendant in error.

Mr. Cuter Justice WuiTe delivered the opinion of the

court.

Solomon, the defendant in error, sued to recover for

personal injuries suffered by him while he was working

as a brakeman on a switch engine in the yard of the de-

fendant company at Youngstown, Ohio. The negligence

charged was that the tender of the engine had a defective

coupler in that the knuckle and pin on the same could not

be worked without going between the cars and that

the draw-bar had so much side play that it would not

meet the couplers of other cars and therefore would not

Sage ah aig east tude UR EIR SM ALINE MS Ya SAS Pe ge eR eR RENTINNS

430 OCTOBER TERM, 1914.

Opinion of the Court. 237 U. 8.

automatically couple by impact. The first defect may be

put out of view as the jury found it did not exist. As to

the second, the respective contentions at the trial were,

on the part of the plaintiff, that the play of the draw-bar

was so great as to cause the coupler to be defective, and

on the part of the defendant, that while the draw-bar may

have had some side play it only existed to the degree

which was essential in such an appliance and therefore

there was no defect. The trial court submitted the case

to the jury on the theory that the coupler was defective

if it had an unusual side play and conversely that it was

not if it did not have such a degree of side play. From the

pleadings and the course of the trial there is no room for

dispute that the case was tried upon the theory that the

right to recover was based on the Safety Appliance Law

of Ohio, substantially identical in its terms with the

Safety Appliance Law of the United States. The judg-

ment on the verdict of the jury in favor of the plaintiff

was affirmed without opinion by the Circuit Court and

again affirmed without opinion by the Supreme Court of

Ohio to which judgment the writ of error now before us

was prosecuted.

Confining the case to the statement just made it is be-

yond dispute that there is no jurisdiction to review, but

it is insisted that the case is not so confined because after

affirmance the court below entered an order which it

directed should be made part of the record certifying that

in deciding the case it became necessary for it to consider

whether the United States Safety Appliance Law was

applicable and whether as construed by the trial court the

state law if applicable was not repugnant to the due proc-

ess clause of the Fourteenth Amendment. But assuming

that the recited Federal questions are in the record and

require consideration, they are so without merit and frivo-

lous as not to give basis for jurisdiction: First, because

such plainly is the result of the contention that error to

AOE AE EET RESELL ALINE ETT NOEL CE OE SE ME

MENS SOR

ERIE RAILROAD v. SOLOMON. 431

237 U.S. Opinion of the Court.

the prejudice of the defendant company concerning the

United States Safety Appliance Law, if that law applied,

was committed by instructing that it exacted a usual,

that is, ordinary degree of care in the appliances to which

that act related. And second, because a like view in-

evitably is necessary concerning the contention that the

State Safety Appliance Law, if it applied, would be re-

pugnant to the Fourteenth Amendment if it exacted a

usual and ordinary degree of care. But this is not ade-

quate to dispose of the case since the argument is that

error as to the recited Federal question directly arose

from the refusal of the court to instruct a verdict for the

Railroad Company on the ground that there was no proof

tending to show an unusual or any defect in the coupler,

thereby permitting the jury to find a liability under the

law of the United States where none existed, and under

the theory of the application of the state law, causing

such law to impose a liability for an appliance which was

not defective, and hence to take property without due

process of law. But while the proposition changes the

form of the contention, it does not change the substance

of things since we are of the opinion after an examination

of the record that the contention that the case should

have been taken from the jury on the ground stated is so

wholly devoid of merit and wanting in substance as to

afford no basis for jurisdiction. As a proposition which

is unsubstantial and frivolous cannot be made substantial

by asserting another proposition of the same character,

it results that there is no ground for the exercise of juris-

-diction and the writ of error is therefore

Dismissed for want of jurisdiction.

RRS PRESS ogg rae ASHI CERT RN