
    JAMES CERVONA, ADMINISTRATOR, ETC., RESPONDENT, v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, APPELLANT.
    Submitted July 5, 1920
    Decided October 15, 1920.
    On appeal from tlie Supreme Court, in which court the following per curiam was filed:
    “The suit was brought under the Federal Employers’ Liability act, and the fact that the deceased was engaged in an interstate commerce employment at the time of the accident is not contested. The appeal is predicated only upon the failure of the trial court to grant a nonsuit, and direct a yerdict. The deceased was a section hand upon the railroad, and at the time of the accident was engaged with a fellow employe in repairing the track switch appliances. On his return from lunch he was run over by a -light engine backing up on the main track near the place where plaintiff had been working in the forenoon.
    “There was no actual witness of the occurrence. It was shown to be the duty of the fireman to keep a lookout along the track. At this- time he was engaged in clearing his fires, and no lookout was maintained. If the accident occurred from this failure of the fireman to perforin his duty, the case was manifestly one of negligence of a fellow servant, and cognizable as such under the federal act.
    “There is no proof that the deceased negligently stepped in front of the engine. There was testimony that no signal of any kind was given, and there was proof that the fireman was not attending to his specific duty of keeping a lookout along the track, and that the engine was coming down the track in the reverse order, a situation from which it might be reasonably argued that in the absence of a lookout a signal of the approach of the engine along the main track should have been given. There was sufficient in the case from which tlie jury might reasonably infer that the accident was produced: by the negligence of a fellow employe, and that fact was sufficient upon which to predicate the action under the federal act, and carry the case to the jury, even if there was proof of contributory negligence as a proximate cause. If the case were here upon a rule to show cause, the argument as to the weight of evidence would be appropos, but in this appeal we are not concerned with that question. Grybowski v. Erie It. 11., 88 X. -7. L. 1; affirmed, 89 Id!. 361; Sanbo-rn assi m.o v. X. Y., id. & \V. II. B92 Id. 10.
    “Whether the deceased assumed the risk as an obvious one was not undisputed on the evidence, and, therefore, if it was in the ease at all. was a jury and not a court question under our cases. Ambrechl v. D., L. & W. li. R., 90 N. J. L. 529; T'onsellito v. X. Y. ('. II. R., 87 Id. 651.
    “We think the situation created by the facts in the case presented a jury question, and that the motion to direct a verdict, as well as the motion to direct a nonsuit, were piep-erly refused.
    “The judgment will lie affirmed.”
    For the respondent, Alexander Simpson.
    
    For the appellant. 'Waller J. Larrabee.
    
   PliR CfKLAAI.

The judgment under review herein should be affirmed, for the reasons expressed in the opinion of the Supreme Court.

For affirmance — Swayze, Tkenokard, BERGEN, Kaliscii, KatzeNbaoji, White. HeppicxheiMer. Williams, Tayloe, Gardner, Ackeiison, JJ. 11.

For reversal — None.  