Lawrence Wayne Tyree v. The New York Central Railroad Company

WEICK, Chief Judge

(concurring in judgment).

I agree that the Court reached the correct result in deciding that the instructions of the trial court to the jury should be considered as a whole and when so considered they were not prejudicially erroneous. This should be sufficient to decide the case.

*530I do not agree that proximate causation, which is an essential ingredient of liability in all negligence cases, is dispensed with in actions brought under the Federal Employers’ Liability Act. Even though a defendant in such an action is liable where the injury results from his negligence, either wholly or in part, such negligence in my opinion must be a proximate cause of the injury in order to warrant recovery. Plaintiff may not recover if his own negligence was the sole proximate cause of his injury. Neither may plaintiff recover where there was negligence on the part of the defendant if that negligence was not a proximate cause of such injury.