Aside from the difficulty of distinguishing between contributory negligence and assumption of risk many other problems arose. One of these was the application of the "primary duty rule" in which contributory negligence through violation of a company rule became assumption of risk. Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139; Davis v. Kennedy, 266 U.S. 147. Other complications arose from the introduction of "promise to repair," "simple tool," and "peremptory order" concepts into the assumption doctrine. In the disposition of cases the question of a plaintiff's assumption of risk has frequently been treated simply as another way of appraising defendant's negligence, as was done by the court below in the instant case.

"`(f) That the verdict is grossly excessive.'" Messrs. Harley Blatt, and Frank G. Tompkins, for appellant, cite: As to actionable negligence: 22 R.C.L., 110-113. Proximate cause: 126 S.C. 416; 243 Pac., 96; 115 S.C. 177; 122 S.C. 17; 240 U.S. 444; 230 Fed., 88; 235 Fed., 49; 242 U.S. 630; 263 U.S. 720; 266 U.S. 147; 120 S.E., 56; 267 U.S. 577; 125 Atl., 172; 207 N.W., 194; 73 L.Ed., 102. Damages: 241 U.S. 485; 114 S.E., 840; 119 S.E., 669; 275 U.S. 133; 149 S.C. 89; 246 U.S. 525; 275 U.S. 133. Safe place to work: 120 S.E., 342; 275 U.S. 426; 233 U.S. 492. Messrs. Wolfe Berry, W.C. Martin, R.C. Holman, and Brown Bush, for respondent, cite: Negligence questionfor jury: 137 S.C. 53. Cases distinguished: 73 L.Ed., 102. Safe place to work: 232 U.S. 94; 147 S.C. 74.

The negligence of deceased must in law be deemed the sole proximate cause of his death. Frese v. Railroad, 290 Mo. 501, 263 U.S. 1; Gt. Nor. Railroad v. Wiles, 240 U.S. 444; Davis v. Kennedy, 266 U.S. 147; M.K. T. Ry. v. Collier, 157 F. 347; Yadkin Railroad v. Sigmon, 267 U.S. 577 (for facts, see 120 S.E. 56). (b) Plaintiff attempted to make a case by relying upon the doctrine of res ipsa loquitur. The petition charges specific negligence.

The engineer of train No. 2 was instantly killed. The trial court, upon the authority of Davis v. Kennedy, 266 U.S. 147, 45 S. Ct. 33, 69 L. Ed. 212, and other cases to like effect, held that the negligence of the decedent in failing to obey the order to pass the extra freight at Largo was the direct and primary cause of the accident. The appellant contends that the negligence of the conductor in failing to give the warning by whistle, required by the rules of the company, was a contributing cause of the accident, for which the company was responsible, and that, under the Federal Employers' Liability Act (45 USCA §§ 51-59), she is entitled to recover a portion of the damage resulting to her from his death in the ratio which the conductor's negligence bears to the negligence of the decedent.

(1) The court erred in denying defendant's motion for a directed verdict at the close of the evidence. Unadilla Valley R. Co. v. Dibble, 31 F.2d 239; Unadilla Valley R. Co. v. Caldine, 278 U.S. 139, 73 L.Ed. 224; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; Frese v. C., B. Q.R. Co., 263 U.S. 1, 68 L.Ed. 131; Dunworth v. Grand Trunk Western Ry. Co., 127 F. 307; Southern Ry. Co. v. Hylton, 37 F.2d 843; Van Der Veer v. Delaware, L. W.R. Co., 84 F.2d 980; Yoakum v. Lusk, 223 S.W. 53; Flack v. A., T. S.F. Ry. Co., 285 Mo. 28, 224 S.W. 415. (2) The court erred in refusing to give defendant's Instruction A declaring plaintiff guilty of contributory negligence as a matter of law. Same authorities cited under Point (1). (3) The court erred in giving plaintiff's Instruction 1 directing a verdict for plaintiff. Same authorities cited under Point (1). (4) The court erred in not sustaining defendant's motion for new trial on account of the mistake or perjury of plaintiff's doctor, M.B. Casebolt. (5) Although reduced by remittitur, the verdict is still so excessive as to require a new trial.

On the other hand, the defendant says that due to the particular facts and circumstances of this case, it does not fall within the scope of the act permitting recovery for the negligence of a fellow employee notwithstanding the contributory negligence of the injured party. It is contended that the act of the deceased in violating a specific rule of the defendant company with reference to the mode of operation of the engine while within the yard limits constituted negligence and the sole and proximate cause of the accident, and sufficient to defeat the action; that under the evidence the question was one of law and should not have been submitted to the jury. Davis v. Kennedy, 266 U.S. 147, 45 S.Ct. 33, 69 L.Ed. 212. The company rule in question reads as follows: "Yard limits will be indicated by 'yard limit' boards.

ply under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. St. Louis S. F. v. Dorman, supra; New York Cent. R. Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198, 74 L.Ed. 562. Plaintiff's own act or negligence was the sole proximate cause of his injury. It was his primary duty to watch out and obey the block signals, to obey his train orders, and to stop at Castleberry without any orders. He violated all company rules, instructions and orders and brought death to himself and others. Therefore, he cannot recover under the Federal Employers' Liability Act. St. Louis S.W. R. Co. v. Simpson, 286 U.S. 346, 52 S.Ct. 520, 76 L.Ed. 1152; Great Nor. R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732; Southern R. Co. v. Youngblood, 286 U.S. 313, 52 S.Ct. 518, 76 L.Ed. 1124; Southern R. Co. v. Dantzler, 286 U.S. 318, 52 S.Ct. 520, 76 L.Ed. 1127; Frese v. C., B. Q. R. Co., 263 U.S. 1, 44 S.Ct. 1, 68 L.Ed. 131; Unadilla V. R. Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91, 73 L.Ed. 224; Davis v. Kennedy, 266 U.S. 147, 45 S.Ct. 33, 69 L.Ed. 212; Bradley v. Deaton, 208 Ala. 582, 583, 94 So. 767; Louisville N. R. Co. v. Mothershed, 110 Ala. 143, 20 So. 67. Notwithstanding the Federal Employers' Liability Act recognizes the doctrine of comparative negligence under a plea of contributory negligence, if plaintiff's negligence was the sole proximate cause of his injuries he cannot recover. So. R. Co. v. Glenn, supra; So. R. Co. v. Youngblood, supra; So. R. Co. v. Dantzler, 286 U.S. 318, 52 S.Ct. 520, 76 L.Ed. 1127. Plaintiff assumed all risks, ordinary and extraordinary, incident to his employment, including those due to the negligence of his employer and fellow employes that were open and obvious or known or appreciated.

In an action under the Federal Employers' Liability Act, held that his failure to obey a rule requiring him before leaving to ascertain from the railway office the whereabouts of trains, was not to be taken as the primary and efficient cause of the accident, precluding recovery, but was to be considered by the jury with the other evidence in determining the question of his negligence. Davis v. Kennedy, 266 U.S. 147; UnadillaValley Ry. Co. v. Caldine, 278 U.S. 139, distinguished. P. 279. 3. The Employers' Liability Act imposes liability on the carrier if the injury or death results "in whole or in part" from its negligence. In this case the questions of negligence and contributory negligence were for the jury.

There could be no recovery even though there was also a failure of some other employee to perform his duty. Great Northern Ry. Co. v. Wiles, 240 U.S. 444; Frese v. Chicago, B. Q.R. Co., 263 U.S. 1; Davis v. Kennedy, 266 U.S. 147; Yadkin R. Co. v. Sigmon, 267 U.S. 577; Unadilla Valley R. Co. v. Caldine, 278 U.S. 139; Virginian R. Co. v. Linkous, 230 F. 88; Blunt v. Pennsylvania R. Co., 9 F.2d 395; Unadilla Valley R. Co. v. Dibble, 31 F.2d 239; Southern Ry. Co. v. Hylton, 37 F.2d 843, cert. den., 281 U.S. 745; Bradley v. N.W. Pac. R. Co., 44 F.2d 683; Paster v. Pennsylvania R. Co., 43 F.2d 908. Leading cases decided by the highest state courts are to the same effect. Gillis v. New York, N.H. H.R. Co., 113 N.E. 212; Davis v. Payne, 216 P. 195; Washington, B. A.E. Ry. Co. v. Cook, 125 A. 172; Hudson v. Norfolk W. Ry. Co., 146 S.E. 525, cert. den., 279 U.S. 866; Roberts, Federal Liabilities of Carriers, 2d ed., vol. II, § 874, p. 1709; Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34, 39.

One of these was the application of the 'primary duty rule' in which contributory negligence through violation of a company rule became assumption of risk. Unadilla Valley Ry. Co. v. Caldine, 278 U.S. 139, 49 S.Ct. 91, 73 L.Ed. 224; Davis v. Kennedy, 266 U.S. 147, 45 S.Ct. 33, 69 L.Ed. 212. Other complications arose from the introduction of 'promise to repair', 'simple tool', and 'peremptory order', concepts into the assumption doctrine. In the disposition of cases the question of a plaintiff's assumption of risk has frequently been treated simply as another way of appraising defendant's negligence, as was done by the court below in the instant case.