The appellee, Breisch, a citizen of Pennsylvania, was injured while employed as a conductor by the appellant, Central Railroad of New Jersey, a corporation of New Jersey. A freight car which was being shifted towards a scales in the yard of American Steel & Wire Company at Allentown, Pennsylvania, broke loose from the drill engine. The appellee jumped on the car and endeavored to stop it by using the hand brake. The brake was defective and the car collided with another, throwing the appellee to the ground, seriously injuring him. It is conceded that the car upon which the appellee was riding was engaged in a wholly intrastate movement. The appellant railroad is clearly a highway in interstate commerce. There was ample evidence upon which the jury could find that the hand brake was defective. Judgment was rendered for the appellee in a substantial amount. The appeal at bar followed.
Jurisdiction of the cause is based upon diversity of citizenship, the amount in controversy exceeding $3,000.
The complaint alleges that the appellant is liable to the appellee by reason of its negligence in hauling a car not equipped with efficient hand brakes as required by the Act of April 14, 1910, c. 160, Sec. 2, 36 Stat. 298, 45 U.S.C.A. §11. See also U.S.C. Title 45, Secs. 12-16, 45 U.S.C.A. §§ 12-16. The appellant contends that the appellee is not entitled to maintain his action under the Safety Appliance Acts and that his sole remedy lies in the Pennsylvania Workmen’s Compensation Act of 1915, P.L. 736. See Sections 302(a) and 303, 77 P.S. §§ 461, 481. The first section referred to provides in part that it shall be conclusively presumed that the parties to a contract of hiring have accepted the provisions of article three of. the. Act and have agreed to be bound thereby. Section 303 provides that, “Such agreement shall constitute an acceptance of all the provisions of article 3 of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death * * * ". Article 3 referred to constitutes the elective compensation provisions of the Act. P.L. 736, Art. Ill, Sec. 301 et seq., 77 P.S. § 411 et seq.
As was made plain by Mr. Justice Roberts in the case of Tipton v. Atchison, T. & S. F. R. Co., 298 U.S. 141, 146-148, 56 S.Ct. 715, 716, 80 L.Ed. 1091, 104 A.L.R. 831, the Safety Appliance Acts as now constituted apply to all cars used upon railroads which are highways of interstate commerce and the duty thus imposed necessarily supersedes the duty of the employer at common law. Mr. Justice Roberts went on to state, “But, unlike the Federal Employers’ Liability Act (45 U.S.C.A. §§ 51-59), which gives a right of action for negligence, the Safety Appliance Acts leave the nature and the incidents of the remedy to the law of the states.” The origin and application of a right of action in an employee by reason of breach of the Acts rests in the law of the States. The negligence charged in the case at bar was the appellant’s violation of Section 2 of the Act of April 14, 1910. This, however, is only one of the elements which, like any other act of negligence, will go to support the appellee’s right of action. It follows therefore that if the Pennsylvania Workmen’s Compensation Act supplies the exclusive remedy of the appellee, he may not maintain the action at bar.
Were we determining as an original question whether the Pennsylvania Workmen’s Compensation Law supplies the ap-pellee with his sole remedy, we would conclude that it did so for its terms are entirely unambiguous and clearly seem applicable under the circumstances. This question, however, has been considered by the Supreme Court of Pennsylvania, acting seemingly under a misapprehension of the nature of the decision of the Supreme Court of the United States in the case of McMahon v. Montour R. Co., 270 U.S. 628, 46 S.Ct. 207, 70 L.Ed. 769. In the McMahon case in the Supreme Court of Pennsylvania (283 Pa. 274, 276, 128 A. 918) it was held that the remedy for a breach of duty imposed by the Safety Appliance Acts lay in the Pennsylvania Workmen’s Compensation Act. The Supreme (£ourt of Pennsylvania held also, however,
The appellant takes the position that the decision in the Miller case is not binding upon us, citing the Tipton case, as authority for his contention. The Tipton case deals with a situation closely analogous to that at bar. In the case of Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874, the Supreme Court held that the first Safety Appliance Act had been extended by later legislation to cover equipment used in intrastate transportation upon railroads which were highways of interstate commerce. Two District Courts of Appeal of California misinterpreted this decision. In the case of Walton v. Southern Pacific Co., 8 Cal. App.2d 290, 48 P.2d 108, 115, it was held that the right of an injured employee to recover damages sustained by reason of a violation of the Federal Boiler Inspection Act (U.S.C.Tit. 45, Secs. 22-34, 45 U.S.C.A. §§ 22-34), applicable as are the Safety Appliance Acts, did not “ * * * extend to the field occupied by the * * * Compensation Act” of the State of California (2 Deering’s General Laws of California, pp. 2276, 2277) and that the employer’s contention that the sole remedy of the employee was under the State Compensation Act was untenable. In Ballard v. Sacramento Northern Ry. Co., 126 Cal. App. 486, 14 P.2d 1045, 15 P.2d 793, another District Court of Appeal concluded that the Safety Appliance Acts imposed not only a duty upon the employer, but gave the employee a remedy as well and that to deny him such remedy would be to disregard the provisions of ¿celera 1 law. The Supreme Court of California refused to review either the Walton case or the Ballard case. The Workmen’s Compensation Act of California, though differing somewhat in the language of its provisions from the Pennsylvania Workmen’s Compensation Law, none the less is similar in substance upon the point sub' judice. In the Tipton case Mr. Justice Roberts, referring to Walton and Ballard cases, stated in 298 U.S. at page 151, 56 S.Ct. at page 719, 80 L.Ed. 1091, 104 A.L.R. 831, “If these decisions of intermediate Courts of Appeal, and the refusal of the Supreme Court of California to review them, amount to no more than a judicial construction of the [California] Compensation Act as having, by its terms, no application in the circumstances, they are binding authority in federal courts. If, on the other hand, the state courts excluded railroad employees injured in intrastate operations from the benefits of the Compensation Act, not as a matter of construction of the statute, but because they thought the Safety Appliance Acts required the state to afford a remedy in the nature of an action for damages, then the court below was right in disregarding that erroneous construction of the federal acts.” Mr. Justice Roberts also stated, 298 U.S. at page 152, 56 S.Ct. at page 719, 80 L.Ed. 1091, 104 A.L.R. 831, “If we were convinced that the court acted solely upon a construction of the Workmen’s Compensation Law, uninfluenced by the decisions following the supposed authority of the Rigsby Case, we should not hesitate to hold United States courts bound by such construction of the state statute. But the terms of the state Compensation Law, and the California decisions construing it, lead us to doubt that this is so.”, and “We are not persuaded that if the state courts had thought that California was free to ordain a plan of workmen’s compensation in lieu of an action for damages for breach of the 'duty imposed by the Safety Appliance Acts they would have restricted the scope of the Workmen’s Compensation Act as was done in the Ballard and Walton Cases. A definite and authoritative decision that its scope is so limited, and that the appropriate remedy under state law is an action for damages, will, of course, be binding upon federal courts.”
In Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 120, 44 S.Ct. 274, 276, 68 L.Ed. 582, the Supreme Court was passing upon a decision of the Court of Appeals of New York which held that
We therefore must determine whether the Supreme Court of Pennsylvania in Miller v. Reading Company was making a judicial construction of the Pennsylvania Workmen’s Compensation Act, its applicability to an employee injured in an accident occurring in Pennsylvania, or was in substance construing the Safety Appliance Acts. The Court stated, 292 Pa. at pages 47, 48, 140 A. at page 619: “But the [Compensation] act, carrying with it a presumption of acceptance of its terms, did not interfere with rights acquired by the congressional legislation, which supersedes the law of the state upon matters within its terms.” The Court also stated, 292 Pa. at page 48, 140 A. at page 620: “The argument is made that, though the Workmen’s Compensation Law is inapplicable to a case falling within the scope of the Federal Employers’ Liability Law, because then interstate commerce is involved, yet the same is not true where the accident occurs in an intrastate movement, for in such instances the local legislation must fix the relative rights of the master and servant. Congress has seen fit to provide that certain appliances shall be used by railroads engaged in business between the states, or connected with others furnishing such service, and, for the protection of all, the performance of certain duties is made requisite. Recovery may be had by employees, irrespective of the character of their work at the particular moment of injury, when there has been a violation of the requirements as to the use of safety appliances. ' These rights of the one injured are not affected by the Workmen’s Compensation Act, for the same underlying reasons which led to the conclusion that the Federal Employers’ Liability Act may notwithstanding be enforced. McMahon v. Montour R. Co. supra.”
The Court also stated: “The act of Congress gave to the employee rights not granted under state laws and our courts have frequently sustained proceedings based on the federal statute in question (Sims v. Pennsylvania R. Co. [279 Pa. 111, 123 A. 676], supra, and cases there cited), and the exercise of this jurisdiction has been approved on appeal to the United States Supreme Court. McMahon v. Montour R. Co., supra; Pursglove v. [Monongahela] R. [Co.], 285 Pa. 27, 131 A. 477, certiorari denied 270 U.S. 654, 46 S.Ct. 352, 70 L.Ed. 783.”, and “Our Workmen’s Compensation Act gave to a board exclusive jurisdiction of proceedings to adjudicate claims of employees, which, by consent, express or implied, it was agreed should be so disposed of, and, as to such cases, jurisdiction of the courts to try and determine is ousted. But as to demands not arising from the ordinary relation of employer and employee, such as the enforcement of rights fixed by federal statute, their powers remain as if no such state legislation was in force. It follows that there was power below to entertain the present proceeding.”
In the light of the foregoing we must conclude that the Supreme Court of Pennsylvania reached the conclusion that the Compensation Act did not apply to Miller’s case, not as a matter of the statutory construction of that Act but because it thought that the proper construction of the Federal Safety Appliance Acts required the ruling that Miller had a cause of action under the Safety Appliance Acts, cognizable in a court of law but not within the purview of the Compensation Law. The conclusion reached by the Supreme Court of Pennsylvania constitutes an erroneous construction of federal statutes and is not binding upon us. The remedy of the appellee lies solely in the Pennsylvania Workmen’s Compensation Act and was not cognizable in an action at law.
Nor can we see how the Act of May 28, 1937, P.L. 1019, Art. IV, Sec. 52, subsection (4), 46 P.S. § 552(4), requires a different conclusion than that which we have expressed. The act referred to provides,
Moreover this quotation from the Miller case becomes peculiarly pertinent in the case at bar when considered in the light of the decision of the Supreme Court oí tile United States in the recent case of State Tax Commission v. Van Cott, 306 U.S. 511, 514, 59 S.Ct. 605, 606, 83 L.Ed. 950. Mr. Justice Black stated in regard to a decision of the Supreme Court of Utah as follows: “If the court were only incidentally referring to decisions of this Court in determining the meaning of the Stale law, and had concluded therefrom that the statute was itself intended to grant exemption to respondent, this Court would have no jurisdiction to review that question. But, if the State court did in fact intend alternatively to base its decision upon the State statute and upon an immunity it thought granted by the Constitution as interpreted by this Court, these two grounds are so interwoven that we are unable to conclude that the judgment rests upon an independent interpretation of the State law. Whatever exemptions the Supreme Court of Utah may find in the terms of this statute, its opinion in the present case only indicates that ‘it thought the federal Constitution (as construed by this Court) required’ it to hold respondent not taxable.” We consider this language peculiarly apposite to the circumstances presented by the case at bar since we think it-is apparent that the Supreme Court of Pennsylvania in the Miller case decided that case upon the assumption that the State of Pennsylvania did not have the power to deny to the injured employee an action at law and make liis remedy under the Pennsylvania Workmen’s Compensation Act an exclusive remedy.*
Accordingly, the judgment of the court below is reversed and the cause is remanded with directions to enter judgment for the appellant.
*.
Cf. 49 Harvard Law Review 458 481; 21 Minnesota Law Review 336-338,