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NORFOLK SOUTHERN R. CO. V. FEREBEE, 238 U. S. 269 (1915)

U.S. Supreme Court

Norfolk Southern R. Co. v. Ferebee, 238 U.S. 269 (1915)

Norfolk Southern Railroad Company v. Ferebee

No. 779

Argued April 23, 1915

Decided June 14, 1915

238 U.S. 269


In the courts of North Carolina in an action under the Employers' Liability Act, there was a trial in which, under the state practice, the jury returned a special verdict finding that the Railroad Company was negligent and that plaintiff was not guilty of contributory negligence. The appellate court, on account of errors in the charge relating

Page 238 U. S. 270

exclusively to the subject of damages, granted a partial new trial limited to the amount of damage, and on which the court refused to admit evidence as to plaintiff's contributory negligence. Held that:

A substantive right or defense under the federal law cannot be lessened or destroyed by a state rule of practice, and ordinarily damages and contributory negligence are so blended that only in rare instances can the question of amount of damages be submitted to the jury without also submitting the conduct of the plaintiff.

In this case, however, as defendant had not asked for a modification of the special verdict or to introduce newly discovered evidence, nor offered any such evidence on the second trial, the question of damages could be considered without also considering that of plaintiff's contributory negligence, as that question had been entirely eliminated from the case, and the defendant was not deprived of any federal right.

The practice of granting a partial new trial in actions under the Federal Employers' Liability Act is not to be commended.

167 N.C. 290 affirmed.

The facts, which involve the construction and application of the Federal Employers' Liability Act and the validity of a verdict and judgment in an action thereunder against the carrier, are stated in the opinion.

Page 238 U. S. 271

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