54 Opinion of the Court. 15 while contributory negligence merely reduced the amount of recovery. The great uncertainty existing prior to the Act as to what the margin between these doctrines was thus became of real significance. The language of the statute itself seemed to impel the courts to practice "the niceties, if not casuistries, of distinguishing between assumption of risk and contributory negligence, conceptions which never originated in clearly distinguishable categories, but were loosely interchangeable until the statute attached such vital differences to them." Pacheco v. N. Y., N. H. & H. R. Co., 15 F. 2d 467. For an attempt to distinguish between the doctrines, see Schlemmer v. Buffalo, R. & P. Ry. Co., supra, 12, and the same case at 220 U.S. 590, 596. The assumption of risk clause in the statute became the subject of endless litigation. The Federal Code Annotated and the United States Code Annotated devote over thirty pages each of fine type merely to the citation and brief summary of the reported decisions; and the number of unreported and settled cases in which the defense was involved must run into the thousands.16 Aside from the difficulty of distinguishing between contributory negligence and assumption of risk many other problems arose. One of these was the application of the "primary duty rule" in which contributory negligence through violation of a company rule became assumption of risk. Unadilla Valley Ry. Co. v. Caldine, 278 U. S. 139; Davis v. Kennedy, 266 U. S. 147. Other complications arose from the introduction of "promise to repair," "simple tool," and "peremptory order" concepts into the assumption doc 15 See 49 L. R. A. 33, 49 (Relation Between Defenses of Assumption of Risk and Contributory Negligence), and 35 Am. Jur. 719 (Pragmatic Distinctions Shown to be Lacking). 16 For some analysis of the cases, see Note 32 Col. L. Rev. 1384, 53 Harv. L. Rev. 341, 71 A. L. R. 451, 89 A. L. R. 693. For an estimate of their quantity, see Schoene and Watson, Workmen's Compensation on Interstate Railways, 47 Harv. L. Rev. 389, 394. Opinion of the Court. 318 U.S. trine." In the disposition of cases the question of a plaintiff's assumption of risk has frequently been treated simply as another way of appraising defendant's negligence,18 as was done by the court below in the instant case. It was this maze of law which Congress swept into discard with the adoption of the 1939 amendment to the Employers' Liability Act, releasing the employee from the burden of assumption of risk by whatever name it was called. The result is an Act which requires cases tried under the Federal Act to be handled as though no doctrine of assumption of risk had ever existed. If this were not sufficiently clear from the language of the amendment, any doubt would be dissipated by its legislative history. The 1939 bill 19 was introduced by Senator Neely and was supported at the hearings by the railway labor unions. It was accepted both by the unions and the railroads that the bill would utterly and completely abolish the defense of assumption of risk.20 The report of the Senate Judiciary Committee struck at the 17 "In thousands of cases the doctrine is complicated by 'promise to repair,' 'peremptory order,' and other special incidents. The 'simple tool' doctrine also arose as an exception. The 'promise to repair' aspect of the question is further confused by two superimposed theories; that the employee may rely upon such promise for a reasonable time and, next, that if the danger was so manifest that no reasonable person would act upon such promise, then assumption of risk is reestablished." House Committee Report, supra, Note 14, p. 4. For a collection of citations on all of the assumption of risk problems, see 2 Roberts Federal Liability of Carriers, 2nd ed., Chapter 39. For a discussion of the "simple tool" doctrine, see Jacob v. New York City, 315 U. S. 752, 756. 18 Harper, The Law of Tort, 292. 19 S. 1708, 76th Cong., 1st Sess. 20 Substantially the same proposal as that finally adopted in 1939 was before the 75th Congress in H. R. 7336. The chief labor exponent of that bill said: The "bill in its nature is intended to relieve the servant from the assumption-of-risk doctrine as interpreted and applied by our United States Supreme Court." Hearings, supra, Note 6, p. 69. Or, 54 Opinion of the Court. basic reasons advanced by common law courts for the existence of the doctrine, declared it unsuited to present day activities, and described them as out of harmony with the equitable principles which should govern determinations of employer-employee responsibilities." The bill, as described in the report, was clearly aimed at making the principles of comparative negligence the guiding rules of decision in accident cases: "The adoption of this proposed amendment will, in cases in which no recovery is now allowed, establish the principle of comparative negligence, which permits the jury to weigh the fault of the injured employee and compare it with the negligence of the employer, and, in the light of the comparison, do justice to all concerned." 22 as it was put by the principal railroad representative at the 1939 Senate hearings, "Here . . . the proposal is to abolish the defense of assumed risk, to abolish it in toto." Hearings, Note 12, supra, p. 37, 38. 21 "But such simple doctrines do not apply equitably under the infinite complexities of modern industrial practices when one's fellow servants may be numbered by hundreds or even thousands, and unlimited output and maximum speed are watchwords on every hand. The commonlaw doctrine of assumption of risk, as applied to the worker in a small factory, cannot be fairly applied to the railroad man, whose services are performed over 150 miles of railroad track, or in a large and congested railroad yard. "The present rule apparently ignores the fact that the master, and not the servant, has control over the conditions which affect the safety of employees. The existing rule not only permits the employer to be careless about the condition of his premises but, in effect, places a premium upon his carelessness. . . ... "Under present economic conditions, employees must, of necessity, continue to work under unsafe conditions or frequently sacrifice the fruits of many years of accumulated seniority, go on relief, or beg their bread." Report of the Senate Committee on Judiciary, 76th Cong., 1st Sess., Rept. No. 661, p. 4. 22 One statement by the bill's chief supporter at the Senate Hearings comes very close to covering the instant case: "It gets back to our The purpose of the Act is made clearer upon analysis of the House bill which was rejected by the conference committee in favor of the Senate bill which is now the law. The House bill 28 was intended to preserve some part of the doctrine of assumption of risk, preserving that defense except "where said employee has not had actual notice of any negligently maintained condition or practice." The bill, unlike the Senate bill as the Representative reporting it explained, left untouched the rule of Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, "namely, that in the absence of special custom or unusual circumstances, a man who is run over by a switching movement cannot recover."" It was the Allen opinion on which the court below in the instant case particularly relied. But the House bill, which the chief railroad counsel appearing before the Senate committee conceded would make no change in the existing law,25 was rejected in conference. The Allen case was specifically and caustically discussed at the Senate hearings, and the Senate bill was clearly aimed at ending its rule." 26 The doctrine of assumption risk can not be "abolished in toto"" and still remain in partial existence as the court below suggests. The theory that a servant is completely barred from recovery for injury resulting from his master's negligence, which legislatures have sought to eliminate in original argument that the courts have so enlarged upon this doctrine that we are confronted with such a situation as this: A poor fellow working in a yard, intent upon his work, and somebody kicks a car on top of him, and the courts, notwithstanding he has no knowledge of it, if he is struck, hold that he has no right to recover. It may be that he was negligent, but again I say the comparative negligence doctrine should be applied." Hearings, Note 12, supra, p. 78. 23 H. R. 4988, 76th Cong., 1st Sess. 24 House Report, Note 14, supra, p. 6. 25 Senate Hearings, Note 12, supra, p. 61. 26 Senate Hearings, Note 12, supra, 14, 17, 76, 81. 27 Supra, Note 20. 54 Opinion of the Court. all its various forms of contributory negligence, the fellow servant rule, and assumption of risk, must not, contrary to the will of Congress, be allowed recrudescence under any other label in the common law lexicon. The Act of 1908 and the amendment of 1939 abolish the post-Priestley v. Fowler defenses and authorize comparison of negligence instead of barring the employee from all recovery because of contributory negligence. They leave for practical purposes only the question of whether the carrier was negligent and whether that negligence was the proximate cause of the injury. In this situation the employer's liability is to be determined under the general rule which defines negligence as the lack of due care under the circumstances; or the failure to do what a reasonable and prudent man would ordinarily have done under the circumstances of the situation; or doing what such a person under the existing circumstances would not have done.28 A fair generalization of the rule is given in the Senate Committee report on the 1939 amendment: "In justice, the master ought to be held liable for injuries attributable to conditions under his control when they are not such as a reasonable man ought to maintain in the circumstances."29 Of course in any case the standard of care must be commensurate to the dangers of the business. Hough v. Railway Co., 100 U. S. 213, 218; cf. Northern Pacific R. Co. v. Herbert, 116 U. S. 642, 652. No case is to be withheld from a jury on any theory of assumption of risk; and questions of negligence should under proper charge from the court be submitted to the jury for their determination. Many years ago this Court said of the problems of negligence, "We see no reason, so 28 Railroad Co. v. Jones, 95 U. S. 439, 442; Texas & Pacific Ry. Co. v. Barrett, 166 U. S. 617, 619; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408. 29 Sen. Report, supra, Note 21, p. 4. |