Lessie U. Gans, of the Estate of James L. Gans, Deceased v. Baltimore & Ohio Railroad Company

McLAUGHLIN, Circuit Judge.

There was a jury verdict in favor of the defendant railroad- in this Federal Employers’ Act case. The problem confronting us is whether, as a matter of law, the trial judge should have eliminated the question of the contributory negligence of plaintiff’s deceased from the jury’s consideration.

James L. Gans, the deceased, was a brakeman who started his employment with defendant in 1941. On November 26, 1959, around 9:00 P.M., he was a member of a freight train five man crew that was making up a train of two diesel units and fifty cars in the Connellsville,…