UNITED STATES SUPREME COURT DECISIONS ON-LINE

The question whether any substantial evidence was introduced to justify submission of a case to the jury on the issue of proximate causal negligence is one of law, reviewable by this Court in an action under the Federal Employers' Liability Act, coming from a state court.

A railroad employee was run down and killed in a switching yard by a switching engine, backing on a track, between the rails of which he was walking in the opposite direction. He was passing through an extensive cloud of steam and smoke coming from a roundhouse and nearby engines, which had settled upon the tracks on a very cold and windy day. The cloud was dense but shifting, so that at times one might see through it considerable distances, and at others but clubjuris

Page 245 U. S. 536

a very short distance. Held that deceased was guilty of contributory negligence.

Under the Federal Employers' Liability and Safety Appliance Acts, contributory negligence avails the carrier neither as a defense nor in diminishing damages if its failure to observe the latter act by having the power brake of it locomotive in working order contributed in whole or in part to cause the death of the employee.

Upon the conflict of testimony introduced, considered in the aspect least favorable to the plaintiff in error, held that it was not error to submit the case to the jury on the question whether the defective condition of the power brake contributed, in whole or in part, to cause the fatal result.

99 Neb. 170 affirmed.

The case is stated in the opinion.