Under Federal Employers' Liability Act, section 3, contributory negli gence does not bar recovery, but system of comparative negligence is substituted whereby damages are diminished in proportion of such negligence to combined negligence of employee and carrier.

Approved in Seaboard Air Line Ry. Co. v. Tilghman, 237 U. S. 501, 59 L. Ed. 1070, 35 Sup. Ct. 653, conductor injured by concurring negligence of himself and railroad may recover damages diminished in proportion to his own negligence under Federal Employers' Liability Act; Pennsylvania Co. v. Cole, 214 Fed. 951, 131 C. C. A. 244, allowing recovery under Federal Employers' Liability Act for injuries to brakeman resulting from his gross negligence and negligence of railroad in operation of another train; New York etc. R. Co. v. Niebel, 214 Fed. 955, 131 C. C. A. 248, allowing recovery under Federal Employers' Liability Act for death of flagman resulting from his own negligence and that of railroad; Cincinnati etc. Ry. Co. v. Goode, 163 Ky. 67, 173 S. W. 332, in action under Federal Employers' Liability Act for injuries to brakeman resulting from his negligence and that of railroad, jury must diminish damages in proportion of contributory negligence of employee to concurring negligence; Louisville etc. R. Co. v. Holloway's Admr., 163 Ky. 132, 173 S. W. 346, in action under Federal Employers' Liability Act, for death of engineer killed in collision with work train, where negligence charged was failure of flagman to give warning of presence of work train, instruction as to diminution of damages in proportion to engineer's negligence, held erroneous; Louisville etc. R. Co. v. Heinig's Admx., 162 Ky. 24, 171 S. W. 857, contributory negligence of engineer does not bar recovery in action for death under Federal Employers' Liability Act, where railroad is also negligent; Trowbridge v. Kansas City etc. Ry. Co., 192 Mo. App. 67, 179 S. W. 782, contributory negligence of switchman in kicking coupler on engine will not defeat recovery, where engineer failed to stop after receiving signal to do so; Waina v. Pennsylvania Co., 251 Pa. St. 219, 96 Atl. 463, holding instruction on comparative negligence mentioning certain proportions by way of illustration was not prejudicial error where it was followed by statement that if employee's negligence was greater than proportion mentioned, damages should be reduced accordingly; dissenting opinion in Tilghman v. Seaboard Air Line R. Co., 167 N. C. 172, 83 S. E. 1092, majority holding in action under Federal Employers' Liability Act for injuries to railroad employee, instruction directing jury to deduct reasonable amount for contributory negligence instead of diminishing damages in proportion to such negligence was

not erroneous.

Under proviso to section 3 of Federal Employers' Liability Act, con tributory negligence of employee does not operate to diminish recovery,

where injury results in part from carrier's failure to comply with Safety Appliance Law.

Approved in Great Northern Ry. Co. v. Otos, 239 U. S. 352, 60 L. Ed. 323, 36 Sup. Ct. 125, in action under Federal Employers' Liability Act for injuries resulting from defective appliance, fact that employee's conduct contributed to result is not defense; Clark v. Erie R. Co., 230 Fed. 481, 482, 483, 484, employee injured by defective coupler while switching cars in interstate commerce may recover under Federal Employers' Liability Act of 1908 as amended in 1910, and Federal Safety Appliance Act of 1893, as amended in 1896 and 1903, irrespective of contributory negligence; St. Louis etc. Ry. Co. v. Anderson, 117 Ark. 46, 173 S. W. 836, allowing recovery under Federal Employers' Liability Act to switchman injured by defective coupler in violation of Safety Appliance Act, irrespective of contributory negligence.

Distinguished in Virginian Ry. Co. v. Andrews' Admx., 118 Va. 487, 87 S. E. 579, holding that carrier is not insurer under Boiler Act of 1911, as under Federal Employers' Liability Act of 1908 and Safety Appliance. Act of 1893.

Under Federal Employers' Liability Act of 1908, it is only when plaintiff's act is sole cause and when defendant's act is no part of causation, that defendant is free from liability.

Approved in Otos v. Great Northern Ry. Co., 128 Minn. 286, 150 N. W. 923, switchman injured by defective coupler in violation of Federal Safety Appliance Act is not barred from recovery by his violation of rule of employer forbidding employees to go between moving cars; Anest v. Columbia etc. R. Co., 89 Wash. 618, 154 Pac. 1104, in action for death of track inspector under Federal Employers' Liability Act, contributory negligence does not bar recovery, but diminishes damages proportionally. Federal Employers' Liability Act. Note, L. R. A. 1915C, 50, 65, 68, 78. Employee's negligence as sole cause of injury and relation of same to contributory negligence in actions under Federal Employers' Liability Act. Note, 10 N. C. C. A. 934.

The Federal Employers' Liability Act as construed and applied by the Supreme Court of the United States down to April 5, 1915. Note, 8 N. C. C. A. 20, 22.

Refusal of instruction carefuly considered by trial court, and asserted error based on such refusal adversely disposed of by Circuit Court of Appeals, both in its original opinion and on rehearing, is not reversible error.

Approved in Central Vermont Ry. Co. v. White, 238 U. S. 513, Ann. Cas. 1916B, 252, 59 L. Ed. 1437, 35 Sup. Ct. 865, 9 N. C. C. A. 275, in action under Federal Employers' Liability Act, ruling of State court that

defect in declaration was cured by charge in plea and admission in replication is binding in Federal Supreme Court; Atlantic Transport Co. v. Imbrovek, 234 U. S. 63, 51 L. R. A. (N. S.) 1157, 58 L. Ed. 1213, 34 Sup. Ct. 733, refusing to disturb finding concurred in by both courts below that employer failed to provide safe place to work, in action by stevedore for injuries received while loading vessel in navigable waters.

Instructions as to contributory negligence in actions under Federal Employers' Liability Act. Note, 7 N. C. C. A. 738, 742, 745. Instructions as to duty and liability of defendant generally in actions under Federal Employers' Liability Act. Note, 7 N. C. C. A. 536.

Risks assumed under the Federal Employers' Liability Act. Note, 8 N. C. C. A. 842.

Excessiveness of verdicts for personal injuries. Note, L. R. A. 1915F, 53, 161.

Miscellaneous. Cited in Cincinnati Northern Ry. Co. v. Dillon, 234 U. S. 754, 58 L. Ed. 1578, 34 Sup. Ct. 998, affirming judgment on authority of principal case.

233 U. S. 51-59, 58 L. Ed. 843, 34 Sup. Ct. 576, CARLESI v. NEW YORK. New York Penal Code, section 1941, imposing heavier penalty on crimi nals having prior convictions either in that or in another State, imposes punishment for new crime only, and is valid; as it imposes punishment only on future crimes, it is not ex post facto.

Approved in In re Allen, 91 Ohio St. 324, 110 N. E. 538, provision of section 12,672, General Code, as amended in 1910, for imprisonment in penitentiary of person convicted of second offense is not retroactive, where second offense is committed after enactment, but first offense was committed prior thereto.

233 U. S. 60-70, 58 L. Ed. 850, 34 Sup. Ct. 567, ARCHER V. GREENVILLE SAND & GRAVEL CO.

Plaintiff praying for injunction only after hearing of cause does not lose rights or remedies by enduring wrongs during litigation.

144

Approved in El Dora Oil Co. v. United States, 229 Fed. 949, C. C. A. 228, defendant in suit by government to restrain taking of petroleum from oil land waives objection to jurisdiction in equity by not tak ing it in trial court.

lands

Dredging gravel from bed of stream is continuing trespass upon of riparian owner for which damages would be inadequate and entitles owner to injunctive relief.

Distinguished in Great Northern Ry. Co. v. Quigg, 213 Fed. 879, denyface ing railroad injunction to restrain construction of State highway on

of cliff above tracks necessitating blasting which threw rocks upon tracks, where contractors are solvent and can respond in damages, and damage may be avoided by co-operation of railroad.

Riparian owner owns land to middle of navigable stream, and may resist trespasser dredging gravel, although such owner could not dredge gravel without permission from Secretary of War.

Approved in Fish v. Chicago etc. R. Co., 125 Minn. 382, 147 N. W. 431, fender may be constructed by railroad to guide water craft through drawbridge constructed over navigable river under authority and direction of Federal government, without compensation to riparian owner, although such owner's title extends to middle of stream.

Right to take sand, gravel or the like from bed of navigable stream.
Note, Ann. Cas. 1916B, 563.

233 U. S. 70–75, 58 L. Ed. 854, 34 Sup. Ct. 562, HERBERT v. BICKNELL. Not cited.

233 U. S. 75–80, 58 L. Ed. 857, 34 Sup. Ct. 564, KANSAS CITY SOUTHERN R. R. CO. v. KAW VALLEY DRAINAGE DISTRICT.

Duty of railroad to construct or alter bridges over public drainage ditches. Note, L. R. A. 1915B, 487.

233 U. S. 80-87, 58 L. Ed. 860, 34 Sup. Ct. 566, SOUTHERN RAILWAYCAROLINA DIVISION v. BENNETT.

Whether verdict is excessive upon evidence is matter for trial court and not reviewable by Supreme Court upon writ of error.

Approved in Texas etc. Ry. Co. v. Hill, 237 U. S. 215, 59 L. Ed. 924, 35 Sup. Ct. 575, holding question whether trial court erred in refusing remittitur for excessive verdict is not open in Supreme Court; St. Louis etc. Ry. Co. v. Craft, 237 U. S. 661, 59 L. Ed. 1165, 35 Sup. Ct. 704, 9 N. C. C. A. 764, award of five thousand dollars damages for pain and suffering for thirty minutes, though large, is question of fact for trial court and not reviewable by Supreme Court under Judicial Code, § 237; Tomljanovich v. Victor American Fuel Co., 227 Fed. 952, holding verdict of nineteen thousand one hundred dollars for injuries to young miner was excessive and should be reduced to fifteen thousand dollars; Fitch v. Huff, 218 Fed. 22, 134 C. C. A. 31, verdict of six thousand dollars voluntarily reduced to three thousand dollars in action for assault upon estranged wife going to room of husband was not excessive; Yurkonis v. Delaware etc. R. Co., 213 Fed. 537, 538, 6 N. C. C. A. 211, denying motion for new trial on condition that verdict for injuries to coal miner be reduced to thirty-six thousand dollars; Louisville etc. R. Co. v. Holloway's Admr., 168 Ky. 272, 181 S. W. 1131, verdict for twenty-five thousand

dollars for benefit of widow in action brought under Federal Employers' Liability Act for death of engineer was not excessive; Chesapeake etc. Ry. Co. v. Kelly's Admx., 160 Ky. 304, 169 S. W. 740, verdict for nineteen thousand and eleven dollars in action under Federal Employers' Liability Act for death of engineer forty-five years old and earning one hundred and ninety-two dollars per month, leaving wife and five minor children, was not excessive; Yarborough v. Columbia Ry. etc. Co., 100 S. C. 39, 84 S. E. 310, holding question of excess of damages is for trial court, and affirming judgment on verdict for four thousand dollars for injuries to passenger alighting from car.

Federal Employers' Liability Act. Note, L. R. A. 1915C, 55, 88.
The Federal Employers' Liability Act as construed and applied by
the Supreme Court of the United States down to April 5, 1915.
Note, 8 N. C. C. A. 21, 24.

Federal questions reviewable in actions under Federal Employers'
Liability Act. Note, 9 N. C. C. A. 456.

Miscellaneous. Cited in Cincinnati Northern Ry. Co. v. Dillon, 234 U. S. 754, 58 L. Ed. 1578, 34 Sup. Ct. 998, affirming judgment on authority of principal case.

233 U. S. 87-97, 58 L. Ed. 863, 34 Sup. Ct. 546, ARIZONA EX REL. GAINES v. COPPER QUEEN CONSOL. MIN. CO.

Miscellaneous. Cited in Mills v. Territory of New Mexico, 235 U. S. 697, 59 L. Ed. 425, 35 Sup. Ct. 203, affirming judgment on authority of principal case.

233 U. S. 97-157, Ann. Cas. 1915D, 593, L. R. A. 1915B, 450, 58 L. Ed. 868,

34 Sup. Ct. 526, BOSTON & MAINE R. R. CO. v. HOOKER.

Subject of interstate transportation of property has been regulated by Hepburn Act of 1906 and particularly by section 20, Carmack Amendment, to exclusion of power of States to control by their own policy or legislation. 1054, 36 Sup. Ct. 665, holding application by Kansas court of local rule Approved in Atchison etc. Ry. Co. v. Harold, 241 U. S. 378, 60 L. Ed. investing innocent holder of bill of lading for interstate shipment with

rights not possessed by shipper was error; Southern Ry. Co. v.

Prescott,

240 U. S. 640, 60 L. Ed. 840, 36 Sup. Ct. 472, under stipulation of bill of lading for interstate shipment that carrier was liable as wareho11 seman only, burden of proof is on plaintiff to show negligence, where loss admit

237 U. S. 603, Ann. Cas. 1916D, 333, 59 L. Ed. 1139, 35 Sup. Ct. 715, 100 S. C. 229, holding South Carolina Civil Code of 1912, § 2573, imposing penalty on carrier for failure to settle claim within forty days, conflicts with Carmack Amendment; Missouri etc. Ry. Co. v. Harris, 234 U. S.