Opinion
June 28, 1966
Judgment dismissing the complaint at the close of the case, in this wrongful death action, brought pursuant to Federal Employers' Liability Act (U.S. Code, tit. 45, § 51 et seq.) unanimously reversed, on the law and on the facts, and new trial ordered, with $50 costs and disbursements to abide the event. In the case of Rogers v. Missouri Pacific R.R. Co. ( 352 U.S. 500), which considered the Federal Employers' Liability Act, at page 506 of its opinion, the court said: "Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence." An issue of fact was presented as to whether defendant's employee, Babilot, was negligent in failing to warn the decedent once Babilot sensed that something was wrong as the dinghy neared the platform edge and therefore the case should have been submitted to the jury.
Concur — Breitel, J.P., McNally, Steuer and Capozzoli, JJ.