Norfolk & Western Railway Co. v. Earnest

Citations

• 229 U.S. 114
• 33 S. Ct. 654
• 57 L. Ed. 1096
• 1913 U.S. LEXIS 2427

Syllabus

<p>The truth of evidence tending-to show a custom as to where switchmen walk in a railroad yard is tor 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.</p> <p>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.</p> <p>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.</p> <p>An instruction that contributory negligence of the employé 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 damages in such a case shall be diminished by’the jury, and the words objected to were meant to give effect to, and not to qualify, the previous instruction.</p> <p>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 employé 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 employé.</p> <p>Where an instruction embodies several propositions of- law, to some of which no objection can properly bo 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.</p>