1. The right of action conferred by the Federal Employers
Liability Act, 45 U.S.C. § 51, is not to be burdened with
impossible conditions. P. 313 U. S.
2. In an action by a locomotive fireman to recover damages for
injuries resulting from a fall alleged to have been due to the
negligence of the engineer in failing to apply the brakes after
notice that a train was standing on the track ahead, held
that evidence tending to prove that the engineer received a warning
from the fireman which, under the circumstances, he should have
understood, was sufficient to go to the jury without further proof
that he actually understood what was said. P. 313 U. S.
146 Mo. 904; 144 S.W.2d 76, reversed.
Certiorari, 312 U.S. 675, to review a judgment reversing a
recovery in an action under the Federal Employers Liability
Page 313 U. S. 257
MR. JUSTICE MURPHY delivered the opinion of the Court.
When the interstate train on which he was fireman emerged from a
curve on the outskirts of Winfield, Kansas, petitioner sighted a
train standing not more than six hundred feet ahead on the same
track. He shouted to the engineer to push the brake valve over in
emergency. The engineer turned and looked at him, but did nothing
to arrest the movement of the train. Petitioner jumped from his
seat, crossed the cab, and stood behind the engineer for a brief
time, but said nothing. When the engine was but two or three car
lengths from the standing train, the engineer applied the brakes.
At that moment, petitioner leaped from the engine and landed in
some rocks along the track. He sustained serious injuries, and, to
recover damages, brought the instant action under the Federal
Employers' Liability Act, 45 U.S.C. §§ 51-59, against respondents
in a Missouri circuit court.
The complaint contained five counts charging negligence, but
only the fourth was submitted to the jury. Count four alleged:
". . . that said engineer . . . was further negligent in that,
after he was notified by [petitioner] that the [train] was standing
on said track near said crossing, he failed to immediately apply
the air in the emergency, to stop said train, which negligence
created a dilemma of imminent peril, which forced [petitioner] to
jump from said train in order to save his life or some bodily
The case was tried before a jury which returned a verdict of
$12,000. From judgment in that amount entered for petitioner,
respondents appealed, assigning various errors. Confining its
attention to one, the Supreme Court of Missouri held that the
circuit court should have granted respondents' motion for a
Page 313 U. S. 258
verdict. It reversed the judgment, but did not remand the cause
for a new trial. 144 S.W.2d 76, 79. We granted certiorari on March
10, 1941. 312 U.S. 675.
It is conceded that the action was properly brought under the
Federal Employers' Liability Act. The single question is whether
the trial court correctly refused to direct a verdict for
In explanation of its conclusion that the trial court erred, the
Supreme Court of Missouri observed:
"The burden was on [petitioner] to establish that he notified
the engineer to go into emergency. He did not so notify him unless
the engineer understood what was said, and there is not even a
scintilla of evidence that the engineer understood that
In other words, not only must petitioner prove that he moved to
warn the engineer of the impending danger, but he must prove the
engineer's subjective comprehension and correct interpretation of
that warning, verbal or otherwise. We cannot agree.
To be sure, petitioner was required by the allegations of his
complaint to prove that he acted promptly and reasonably to awaken
the engineer to the danger ahead. Since the only count submitted to
the jury charged that the engineer was negligent in failing to
apply the brakes after notice of the train in front, petitioner was
compelled also to prove that the notice was communicated to the
engineer. But, to establish the fact of communication, petitioner
had only to prove that the engineer should have comprehended the
warning under the circumstances disclosed. He was not obligated to
go further and produce evidence of the subjective reactions in the
engineer's mind. The right of action conferred by § 51 is not to be
burdened with impossible conditions.
There was evidence from which the jury could have concluded
that, if not subject to any physical disability, the engineer would
have comprehended petitioner's monition
Page 313 U. S. 259
and understood that peril was imminent. Petitioner testified
without contradiction that he "hollered" his warning loudly; that
only a narrow space separated his perch from the engineer's seat;
that the engineer's hearing was "all right;" that petitioner and
the engineer could and did carry on "normal conversations" while
the train was operating, and that there was comparatively little
noise in the cab from the train.
Judged by the test outlined above, that evidence was ample to
warrant submission of the issue to the jury. Since other questions
which our decision does not touch were presented to the Supreme
Court of Missouri, the judgment is reversed, and the cause is
remanded to that court for further proceedings not inconsistent
with this opinion.