Joseph Rucker Lamar

“ The company then brought the case here by writ of error, in which it contends that it was error for the supreme court to grant a partial new trial in which the question of damages only could be considered, inasmuch as the employers' liability act entitles the defendant in all cases to prove contributory negligence in mitigation of damages. On the other hand, the defendant in error contends that the question as to whether there should have been a partial new trial was a matter of procedure, to be governed by the practice of the state of North Carolina. ”

“ Damages and contributory negligence are so blended and interwoven, and the conduct of the plaintiff at the time of the accident is so important a matter in the assessment of damages, that the instances would be rare in which it would be proper to submit to a jury the question of damages without also permitting them to consider the conduct of the plaintiff at the time of the injury. ”

“ That offered and excluded was not in the nature of newly discovered evidence, and the ruling of the trial court in reference to such evidence was in accordance with the mandate of the supreme court. The other matters relied on here for a reversal involve no construction of the Federal act and are not of a nature to warrant this court in granting a new trial. Seaboard Air Line R. Co. ”