William J. Brennan, Jr.

“ He expressly stated that his position was that the trial record was sufficient 'to prove that the railroad either knew or should have known that Bert Smith was physically unable to take that test and likely to be injured if he took it, and in spite of what the railroad knew or should have known, they gave him the test.' The trial judge accepted the proffer over the carrier's objection, but ruled that he was bound by the Court of Appeal's holding that that record did not suffice to raise a jury question of negligence. ”

“ Therefore, when the District Court of Appeal, per curiam, affirmed 'upon the authority' of its previous opinion, 118 So.2d 237, the affirmance sustained the trial judge's interpretation of the reversal as having rested, not on the ground that the Railway Labor Act precluded the petitioner's claim under the Federal Employers' Liability Act, but on the ground that the evidence of negligence was insufficient to support a recovery on the claim properly pleaded under the latter statute. ”

“ Support for this interpretation is in the statement of the opinion that ' (T) he appellee's entire case as reflected by this record conclusively indicates that it was premised upon the claim that appellant's conduct in requiring the appellee to take a field test was unlawful and that all of his injuries and damages resulted from such unlawful act.' 104 So.2d at page 870. ”