Opinion
March 16, 1995
Appeal from the Supreme Court, New York County (Richard Rosenbloom, J.).
The court properly directed a verdict on the issues of causation and comparative negligence in this case. The standard of negligence in FELA cases is considerably more liberal than that governing common-law negligence actions, simply requiring proof that "`justif[ies] with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought'" (Curley v Consolidated Rail Corp., 178 A.D.2d 318, 319, affd 81 N.Y.2d 746, cert denied ___ US ___, 113 S Ct 2415, quoting Rogers v Missouri Pac. R.R. Co., 352 U.S. 500, 506). Upon our view of the evidence presented, any jury finding of negligence on plaintiff's part, would have been the result of pure speculation or prejudice attributable to defendant's repeated, improper insinuations that plaintiff assumed the risk for his action. Acknowledging that the defense of assumption of the risk is not available in an action under the FELA, defendant's characterization of its arguments as the defense of comparative negligence is unpersuasive (see, Fijal v. American Export Isbrandtsen Lines, 127 A.D.2d 167). We have considered defendant's other arguments and find them to be without merit.
Concur — Rubin, J.P., Ross, Nardelli, Williams and Tom, JJ.