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NORFOLK & WESTERN RY. CO. V. EARNEST, 229 U. S. 114 (1913)

U.S. Supreme Court

Norfolk & Western Ry. Co. v. Earnest, 229 U.S. 114 (1913)

Norfolk & Western Railway Company v. Earnest

No. 153

Argued January 29, 30, 1913

Decided May 26, 1913

229 U.S. 114


The truth of evidence tending to show a custom as to where switchmen walk in a railroad yard is for the jury to determine, and if true, it is the duty of an engineer, in the exercise of ordinary care to watch for a switchman whom he knows is in the usual locality and in front of his engine.

It is not error to refuse an instruction as to assumption of risk which is couched in such sweeping terms that it could not enlighten the jury as to the particular phase of the case to which it is deemed applicable.

Fairness to the court requires one objecting to a particular part of the charge as misleading to call special attention to the words in order that the court may either modify or explain them.

An instruction that contributory negligence of the employee goes by way of diminution of damages, held not error because the statute says that, in such a case, the jury must diminish the damages, it appearing that the words objected to followed an instruction that the

Page 229 U. S. 115

damages in such a case shall be diminished by the jury, and the word objected to were meant to give effect to, and not to qualify, the previous instruction.

The purpose of the provision in regard to contributory negligence in the Employers' Liability Act is to abrogate the common law rule of complete exoneration of the carrier from liability in case of any negligence whatever on the part of the employee and to substitute therefor a new rule confining the exoneration to a proportional part of the damages corresponding to the amount of negligence attributable to the employee.

Where an instruction embodies several propositions of law, to some of which no objection can properly be taken, a general exception does not entitle the exceptor to take advantage of a mistake or error in some single or minor proposition of law.

The facts, which involve the liability of a railroad for personal injuries sustained by one of its employees while both were engaged in interstate commerce and the construction of the provisions of the Employers' Liability Act of 1908 in regard to contributory negligence, are stated in the opinion.

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