In its second argument, Norfolk Southern argues it is the duty of the Court to hold a railroad not liable as a matter of law in a FELA case when the sole cause of the accident was the conduct of a person other than the defendant (Id.). Norfolk Southern illustrates an obvious situation of this principle is when an engineer violates orders or ignores signals and runs into the rear of another train (Id. citing Davis v. Kennedy, 266 U.S. 147 (1924)). Norfolk Southern further argues that where a court can hold a FELA plaintiff's own negligence was the sole cause of his accident, this same result can be reached where a third party's negligent conduct was the sole cause of the accident (Id. citingRhinelander v. St. Louis-San Francisco, Co., 257 S.W. 2d. 655 (Mo. 1953); Howard v. Atlantic Coast, 66 S.E. 2d 87 (Ga.App. 1951)). In this regard, Norfolk Southern argues Co-Defendant Graham was both contributorily negligent and his negligence was the sole cause of the accident (Id.). Looking at Graham's contributory negligence, Norfolk Southern states under Ohio law, the Norfolk Southern train had the right-of-way over the Masur truck (Id. citing New York, Chicago, and St. Louis R. Co. v. Kistler, 66 Ohio St. 326 (1902)).

His claim against the construction company was upon common law principles of tort liability. For similar cases see: Southern Pac. Co. v. Ralston, 10 Cir., 1933, 62 F.2d 1026; Id., 10 Cir., 67 F.2d 958; Southern R. Co. v. Blanton, 1937, 56 Ga. App. 232, 192 S.E. 437; Id., 1938, 59 Ga. App. 252, 200 S.E. 471; Id., 1940, 63 Ga. App. 93, 10 S.E.2d 430; Howard v. Atlantic Coast Line Ry. Co., 1951, 84 Ga. App. 307, 66 S.E.2d 87; Casseday v. Baltimore O. Ry. Co., 1941, 343 Pa. 342, 22 A.2d 663; Missouri-Kansas-Texas R. Co. v. McKinney, Tex.Civ. App., 1939, 126 S.W.2d 789; Id., 1941, 136 Tex. 75, 145 S.W.2d 1081. Questions regarding the right to join defendants in such cases as well as questions of severance, are discussed in Way v. Waterloo etc. Co., 1947, 239 Iowa 244, 29 N.W.2d 867, 174 A.L.R. 723; and Annotation 174 A.L.R. 734.