US SUPREME COURT DECISIONS

Where plaintiff in error seeks to review under § 237, Judicial Code, the judgment of the state court in a case arising under the Employers' Liability Act, this Court may not consider nonfederal questions chanrobles.com-red

Page 236 U. S. 669

which do not in their essence involve the existence of right to recover under the federal statute.

Existence of power to review the judgment of the state court under § 237, Judicial Code, rests not merely upon form, but upon substance and cannot arise from the mere assertion of a formal right which is so wanting in foundation and unsubstantial as to be devoid of merit and therefore frivolous.

While in this case the assignment of error on its face is not frivolous and gives jurisdiction to review, the proposition that the jury was misled by the instructions of the court in regard to the doctrine of assumption of risk is unfounded.

If the proof is sufficient to justify the submission of the case to the jury on the question of assumption of risk, there is no reversible error in so doing and in not instructing a verdict for defendant, and as in this case two courts below have concurred in finding that there was sufficient proof, this Court finds there was no error.

83 S.E. 633 affirmed.

The facts, which involve the jurisdiction of this Court of writs of error to review a judgment of the state court under § 237, Judicial Code, are stated in the opinion. chanrobles.com-red

Page 236 U. S. 670