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
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
Page 245 U. S. 536
a very short distance. Held
that deceased was guilty of
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
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.
MR. JUSTICE CLARKE delivered the opinion of the Court.
Fred J. Huxoll, a locomotive engineer in the employ of the
plaintiff in error, was run down by a switching engine, about 11
o'clock in the morning, in a switching yard of the company at a
division point in Nebraska, and subsequently died of the injuries
which he received.
The weather was very cold, with a high wind blowing, and a cloud
of steam and smoke, from engines standing nearby the scene of the
accident and from a roundhouse farther away, had settled down upon
the tracks, and it was while passing through this that the deceased
was struck by the engine. This cloud of steam and smoke is
described by one witness as extending 300 or 400 feet along
Page 245 U. S. 537
the tracks, and by another for about 100 to 200 feet. It varied
in density and shifted with the wind, so that at times one could
see considerable distances through it, while at other times it was
so dense that it was possible to see only a very short distance.
Huxoll was walking eastward through this cloud of smoke and steam,
and was between the rails of one of the tracks when an engine
backing toward the west struck him in such a manner that the tender
passed over him, and when the engine was stopped, he was opposite
the main driving wheel, with his right wrist under the wheel on the
Judgment was rendered by the trial court on a verdict in favor
of the plaintiff, which was affirmed by the Supreme Court of
Nebraska, and, the case being one to which the Federal Employers'
Liability Act is applicable, it is now here on writ of error.
There are many claims of negligence in the petition, but the
court submitted only three of them to the jury, and of these we
need consider but one instruction, viz.,
was the power
brake on the engine in working order at the time of the accident,
and if it was not, did this defect contribute "in whole or in part"
to cause the death of Huxoll?
The oral argument of counsel for the plaintiff in error was
practically confined to the proposition that the trial court
committed reversible error in submitting these questions to the
jury, for the reason that, even if it be assumed (as it must be,
for there is sharp conflict on the point) that the power brake was
not in working order, there was no substantial evidence in the case
that this failure contributed "in whole or in part" to cause the
death of Huxoll.
The engineer did not see the deceased at the moment he was
struck, and it is argued that there is no substantial evidence to
show how much farther the engine ran after he was notified of the
accident than it would have run if the power brake had been
properly applied, or that
Page 245 U. S. 538
the running of the engine such distance, whatever it may have
been, added anything to the injuries of the deceased, and so
contributed to cause his death.
It is necessary for us to examine the evidence in the record to
determine the validity of this claim, for the reason that it
presents a federal question not of fact but, of law (Creswell
v. Knights of Pythias, 225 U. S. 246
225 U. S. 261
Seaboard Air Line v. Padgett, 236 U.
, 236 U. S.
), and it relates to the only negligence claimed in
the case which, if proved, would relieve the defendant in error, as
the charge of the court in the instruction we are considering
relieved her, from the necessity of having her recovery diminished
by the jury in proportion to the amount of negligence attributable
to her decedent, who was obviously guilty of contributory
negligence in walking on the track under the conditions shown.
The Federal Employers' Liability Act of April 22, 1908. 35 Stat.
65, is confessedly applicable to the case, and the rule of
liability prescribed by this and the Safety Appliance Act of March
2, 1893, 27 Stat. 531, is, as the trial court charged, that if the
failure to have the power brake in working order contributed "in
whole or in part" to cause the death of deceased, the plaintiff in
error would be liable in damages, and neither contributory
negligence nor assumption of risk could avail the company as a
defense or in diminishing the damages.
There is conflict in the evidence; as to the speed at which the
engine was moving when it entered the cloud of steam and smoke, the
estimates vary from three miles to ten miles an hour; as to the
distance within which the engine with the power brake properly
working could have been stopped under the conditions which existed
at the time of the accident, the estimates vary from "almost
instantly" -- eight to ten feet -- to forty feet; as to when the
engineer received notice that the deceased had been struck, the
statements vary from almost the instant the
Page 245 U. S. 539
man was struck to considerably later; as to the distance which
the engine ran after striking the deceased, the estimates vary from
thirty to about one hundred thirty-five feet; as to the distance
which the engine ran after the engineer had notice of the accident,
the engineer testified at one time that he thought it did not
exceed forty feet, while other testimony tended to show that it
must have been considerably more than one hundred feet, and as to
the lookout which the engineer was keeping when the accident
The first wheel to actually strike the deceased was the "main"
driving wheel -- the middle one of the three -- and this was
standing on his right wrist when the engine was stopped, so that
the entire tender and quite one-half of the engine proper,
including the fire box, passed over his body, which was found so
wedged beneath the engine that it was necessary to remove the brake
rods to release him.
The deceased was not instantly killed, but was conscious and
talked some during the forty-five minutes which elapsed before he
was released from under the engine, and also later in the day while
on the way to the hospital at Cheyenne, and he did not die until
two o'clock the next morning. The injuries which caused his death
are not described beyond the bare statement that the driving wheel
rested on the wrist of his right arm, that that arm was found
afterwards to be torn from the shoulder, and that his scalp was
Considering this conflicting testimony in the aspect of it least
favorable to the company, as we must on this review, it results
that there is evidence tending to show that, while the engineer did
not see the man struck, he was notified almost instantly by a call
to stop from the one witness who says he saw him struck, and that,
if the power brake had been working, the engineer could have
stopped his engine, running three or four miles an hour, "almost
instantly," "in eight to ten feet," but that, in fact, it
Page 245 U. S. 540
ran for approximately one hundred thirty-five feet after
striking the deceased, with his body under the tender or engine
almost the entire time.
Demonstration is not required in such a case as we have here,
but responsibility for the accident must be determined upon the
reasonable conclusions to be drawn from the evidence, and it is
impossible for us to conclude that the conflict which we have thus
described does not present evidence sufficient to justify the
submitting of the case to the jury for its determination as to
whether the deceased, who survived the accident for fifteen hours,
received injuries which contributed, in part at least, to the fatal
result during the time that the engine was being negligently run
for a distance which there is evidence tending to show was at least
one hundred feet, with his body all the time being dragged and
crushed between the frozen ballast of the track, the low-hanging
attachments of the tender, and the rods of the driving wheel brakes
with which his body was found so entangled that it required
forty-five minutes to release him from his desperate situation. It
is significant that the men who were there, with all of the
conditions before their eyes, thought that further movement, even
the slightest, of the engine, would result in further injury to the
deceased and that, for this reason, they would not permit it to be
moved at all, but thought it necessary to remove the brake rods in
order to release him, even though this required that he be exposed
to the cold in much below zero weather for forty-five minutes.
The judgment of the Supreme Court of Nebraska must be