ON PETITION FOR REHEARING. A petition for a rehearing is filed by the respondent. It, among other things, is urged that because of law of the case we were precluded from considering the question of assumption of risk on merits. It is contended that the railroad company, by cross-assignments or otherwise, could have presented the question on the first appeal, and, having failed to do so, may not now on the same evidence be heard thereon on this appeal. Because the judgment rendered by us on the first appeal, reversing the judgment of the court below and remanding the cause for a new trial, being not a final judgment, and hence not appealable or otherwise subject to review by the Supreme Court of the United States at that stage of the proceedings on the application of either party, we regarded what was decided on the first appeal as not the law of the case, precluding the parties from being heard on the merits of the cause on this appeal.
In some jurisdictions it has been held that, where a decision is rendered by an intermediate court of appeals, and an appealor other remedy is open to the losing party to have such decisionreviewed in a court of last resort, if he fails to avail himself thereof and allows the case to be remanded for further proceedings, and thereafter appeals to the intermediate 12, 13 court and thence to the court of last resort, the points decided by the intermediate court on the first appeal will be regarded as the law of the case, not only as to the intermediate court, but also as to the court of last resort and will not there be re-examined. The cases are collected and noted in the case of Gohman v. St. Bernard, reported in 111 Ohio St. 726, *Page 572
146 N.E. 291, 41 A.L.R. 1078. Seemingly Silva v. Pickard, 14 Utah 245,47 P. 144, is to that effect. But in other jurisdictions the rule is that, where there have been two or more appeals to an intermediate court, and the case finally goes before the court of last resort, that court will review it to the extent which the record before it permits, without regard to any previous decision of the intermediate court. The cases so holding are there also noted. Within that rule are the decisions of the Supreme Court of the United States.
We think such is the correct rule. Though the first-stated rule should be regarded as the correct rule, yet the case in hand does not fall within it, for the judgment rendered by us on the first appeal, not being final, was not appealable or subject to review at that stage of the proceedings. Since the Supreme Court of the United States is the final adjudicator and the court of last resort on questions of interstate commerce and of assumption of risk under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), as well as to all other constructions of the act, it is clear that no matter what we may have decided on the first or on this appeal with respect to such questions can in no sense be the law of the case, binding on or applicable to the Supreme Court of the United States. Thus, if what respecting such questions may have been decided on the first appeal is not the law of the case, applicable to the Supreme Court of the United States, we do not well see how it may become the law of the case applicable to us on the second appeal.
We thus regarded both questions of interstate commerce and assumption of risk as at large, and so considered and determined them on the record presented on the second appeal. Upon such consideration we felt content with the ruling made by us on the first appeal as to the question of interstate commerce, and thus reaffirmed such ruling. The question of assumption of risk was also considered at large on merits. True, as is urged, the railroad company, on the first appeal, by cross-assignments or otherwise, could have defended the ruling of the court below directing a verdict in *Page 573 its favor, by presenting the question but it in no manner did so. However, since what we expressly decided on the first appeal did not become the law of the case, we thing it necessarily follows that what could have been presented and decided on that appeal, but was not, likewise did not become the law of the case.
A rehearing also is urged upon the ground that we as an original proposition erred in holding that the plaintiff assumed the risk as matter of law, and that the question ought to have been, as it was, submitted to the jury as a question of fact. Upon further consideration of the question, and of the additional authorities cited, we are still content with the ruling made by us. The principal elements of assumption of risk as applied to interstate commerce employees under the federal act, consist of two kinds, ordinary and extraordinary. The former are those usually and normally incident to the occupation in which the employee voluntarily engages. Such risks, by a mature and experienced employee, are assumed by him, on the theory that he is conclusively presumed to have knowledge of them and to have assumed injuries arising therefrom. Risks not naturally incident to the employment, but which arise from the negligence of the carrier, are not assumed, unless the employee has knowledge of them and appreciates the danger arising therefrom, or unless the risk and danger are so obivious as to presume knowledge and appreciation. 2 Roberts Fed. Liabilities of Carriers (2d Ed.) § 831 et seq., and cases cited, including cases of the federal courts.
As pointed out in our opinion, whatever negligence was committed by the appellant, the railroad company, in switching and operating the tank car at an excessive and negligent speed, was known to the respondent, when he was on the running board of the engine and signaled the engineer to slow down, and knew that the engineer gave no heed to the signals, knew the speed at which the tank car was operated when it was disconnected, and when the plaintiff dismounted the engine and attempted to board the car. He, as well as *Page 574 if not better than any one at or about the transaction, had opportunity to judge and know the speed of the tank car when he attempted to board it.
We also are again reminded that the act of the plaintiff in attempting to board the tank car involved elements of contributory negligence rather than assumption of risk, and that the jury by its verdict diminished the total amount of plaintiff's damage by $5,000. That there is a clear and practical distinction between assumption of risk and contributory negligence is well settled by the Supreme Court of the United States and by other courts. The matter is discussed and cases cited in 2 Roberts, Fed. Liabilities of Carriers, § 836 et seq. While Mr. Justice Holmes, in the first case of Schlemmer v.Buffalo, R. P. Co., 205 U.S. 1, 27 S. Ct. 407, 409,51 L. Ed. 681, said that assumption of risk "obviously shades into negligence as commonly understood," and that "the difference between the two is one of degree rather than of kind," yet, on the second review of the same case (220 U.S. 596, 31 S. Ct. 561,563, 55 L. Ed. 596), Mr. Justice Day said that there was "a practical and clear distinction between the two," and that assumption of risk rested on knowledge of the risk and appreciation of danger, while contributory negligence rested on the omission of the employee to use those precautions for his own safety which ordinary prudence requires.
The distinction is defined in the case of Seaboard Air LineR. Co. v. Horton, 233 U.S. 492, 34 S. Ct. 635, 639,58 L. Ed. 1062, L.R.A. 1015C, 1, Ann. Cas. 1915B, 475, where it is said:
"The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employee; and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion or fault or negligence on the part of the employee. The *Page 575 risks may be present, notwithstanding the exercise of all reasonable care on his part."
The are numerous other cases to the same effect. Among them may be noted Choctaw, O. G.R. Co. v. McDade, 191 U.S. 64,24 S. Ct. 24, 48 L. Ed. 96, and Yazoo M.V.R.R. Co. v. Wright,235 U.S. 376, 35 S. Ct. 130, 59 L. Ed. 277. See, also, 39 C.J. 1240; 3 Labatt, Master Servant (2d Ed.) 3310-3315. And it is clear that the act itself makes a distinction, for the one is regarded a complete defense, and the other only a defense pro tanto.
Here it is not shown that the plaintiff's act in attempting to board the car was done in a careless or negligent manner, but that in making the attempt in as careful a manner as he could he took the chance of injury from a risk and danger known to and appreciated by him. On the record we, of course, cannot tell what omitted or committed act of the plaintiff was regarded by the jury as contributory negligence. It, among other things, was urged by the railroad company that the plaintiff was guilty of negligence, when the flying switch was made, by his taking a position on the running board of the engine, instead of on the front platform of the car, in which case he would have been on the car after it was disconnected, and could have controlled its movements, without being required to board it after it was disconnected. Whether the jury, on that or some other issue, found the plaintiff guilty of contributory negligence, cannot be determined from the verdict.
The application for a rehearing is denied. But, inasmuch as it has been represented and made to appear that on a retrial of the case the evidence with respect to the issue of assumption of risk would in all essentials be the same as shown by the record on this appeal, and that on a retrial neither party would have any other or further evidence to offer, and that, in view of our holding on the question of assumption of risk, the trial court thus on a retrial would be required to direct a verdict in favor of the defendant of *Page 576 no cause of action and to dismiss the case, our former order that the cause be remanded for a new trial is vacated and modified, and an order now made in lieu thereof dismissing the action. In other respects, our opinion and judgment may stand.
So, in view of the premises, the judgment of this court is that the judgment of the court below is reversed, and the action dismissed on merits.
All the Justices concur.