
    No. 162
    No. 19092
    The Hocking Valley Railway Co. v. Bert F. Kontner.
    Error to the Court of Appeals of Franklin county.
    262. COMPARATIVE NEGLIGENCE. — 1. Where plaintiff employe is negligent together with other employes, such negligence resulting in his injury, he is not barred from recovery. Amount of damages diminished in proportion to injured employe’s negligence.
    2. Request to charge denying comparison of negligence between plaintiff and defendant properly refused.
   JONES, J.

1. Under the Federal Employers’ Liability Act, if the plaintiff employe’s negligence is the sole, proximate cause oí his injuries, recovery cannot be had. But if such injuries result in part from the negligence of other employes of the carrier and in part from the negligence .of the employe injured, the latter is not barred from recovery; but the amount of damages recoverable must be diminished “in proportion to the amount of negligence attributable to such employe.”

2. A carrier’s train stopped for an hour or more at a watering point. Under this condition, its rule required the flagman to “go back immediately with stop signals a sufficient distance to insure full protection”. The flagman disobeyed this rule and went to sleep in the caboose at the rear end of the standing train. A freight train about an hour later ran into and collided with the standing caboose. Assuming that the jury found that the engineer in charge of the following train was negligent in failing to observe the caboose ahead, the causal negligence is partly attributable to both, carrier and plaintiff, and the latter may, under the Federal Act, recover damages proportionally dimiriished as therein provided.

3. Under the facts developed by the testimony, a request to charge denying the comparison of negligences between plaintiff and defendant, or the apportioning of their effect, was properly refused by the court. (Great Northern Ry. Co. v. Wiles, Admr., 240 U. S. 444, and other federal cases distinguished.)

Judgment affirmed.

Matthias, Day, Allen and Robinson, JJ., concur.  