Appeal from the District Court of the United States for the Northern District of Indiana, South Bend Division; Thomas W. Slick, Judge.
Before EVANS, SPARKS, and FITZHENRY, Circuit Judges.
FITZHENRY, Circuit Judge.
Appellant (defendant below) seeks to reverse a judgment for damages for personal injury. At the conclusion of appellee's (plaintiff below) evidence, appellant moved for a peremptory instruction to the jury to return a verdict in favor of appellant, which was overruled. At the conclusion of all the evidence, the motion was renewed and overruled, and the jury returned a verdict in a substantial sum. A motion for a new trial was denied, and judgment entered on the verdict.
The complaint contains two paragraphs, both brought under the Federal Employers' Liability Act (45 USCA §§ 51-59). The first relies upon the common-law negligence by reason of the defective condition of the freight car in question; the second, upon the absence of a grabiron at the top of the side ladder, on the roof of the car, and invokes the Federal Safety Appliance Act (45 USCA § 1 et seq.). Appellant answered in general denial and filed an affirmative answer, alleging that the freight car in question had been withdrawn from use and appellee had assumed the risk. It was conceded by both sides that the employment of appellee was in interstate commerce and that the Employers' Liability Act controls.
The court withdrew from the jury the question tendered by the first paragraph, that is, the charge of common-law negligence, but sent to the jury the issue tendered under the Safety Appliance Act, by the second paragraph. Appellant conceded that the grabiron was missing, but contended the car was undergoing repairs and had been withdrawn from use.
Two errors were assigned, the refusal of the court to direct a verdict for appellant, and erroneous instructions of the court with regard to withdrawal of the car from use so as to make inapplicable the Safety Appliance Act.
Appellee, Kelly, was employed as a field brakeman in a yard crew at the Twenty-Second street yards at Indianapolis. He had been employed by appellant for twenty-four years prior to the accident, seventeen years as a brakeman and switchman and seven years as a conductor, working regularly twenty-six days a month. He stated he knew the car from which he fell was on the repair track for repairs.
In order to indicate cars which were undergoing repairs, a bad order card was placed on the sides of each end of every defective car when it reached the repair track and was not removed until the repairs were completed. Prior to and at the time appellee received his injuries, such a card, showing the nature of the defects, was on each end of the car from which he fell. The cards on the car in question, at the time, stated that the latitudinal running board was missing, and the stile was split on the brake end of the car, right side. Appellee had handled cars on the repair tracks during his experience as a switchman. He knew the purpose and meaning of bad order cards and the rules of the company requiring him to familiarize himself with the conditions of the cars. Appellee claimed to have had difficulty in reading the cards in question, but did not claim to have read the cards prior to the accident. It is admitted that the car was undergoing repairs, on a repair track which was not used for general switching and which was locked so as to preclude the entry of cars while repairs were being made until 4 o'clock p.m., when the track was unlocked to permit the repaired cars to be withdrawn.
According to appellee's testimony, his yard crew, generally engaged in making up an interstate train, on June 27, 1932, entered the repair track with interstate cars attached to the engine, after the repair work had been completed for the day, and in so doing, unintentionally moved the car in question a few feet. Thereafter appellee attempted to set the brake on it, fell and was injured, because of the absence of a grabiron. This story was sharply contradicted by practically all of the other witnesses on every material point.
Appellee testified that the brake on the car from which he later fell had not been set; that it was the custom and his duty to see that the brake was set, to prevent the car running off the repair track, which sloped to the south; that he left the main track and went over to the freight car for the purpose of setting the brake. In this he was squarely contradicted by all the witnesses. They stated the repair track is level and there is no custom or duty to set the brakes on a car on this track. Appellee further testified that he went to the brake end of the car, climbed up the ladder, and, upon reaching the top, without looking, he reached for the grabiron, but it had been removed in the course of repairs; he grabbed a stile, which was unattached, and fell back to the ground.
Twenty-Second street, in Indianapolis, runs east and west. Appellant's tracks run north and south. On Twenty-Second street the Belt tracks lead from appellant's tracks to the southeast.A few feet south of the clearance of the Belt tracks another lead began, running off appellant's old main track; after that lead clears the easterly main track another set of leads connects with a side track; just beyond the clearance of the side track is another track which leads to repair tracks Nos. 1 and 2. At the point where appellee fell, all of the main tracks and the repair tracks run due north and south; the repair tracks being separated a considerable distance from all the main tracks and the side track. The repair tracks run to stub ends, and at the end of each is an earth bumper.No. 1 repair track is called the west track and No. 2 the east track.
Appellee, in explaining what the yard movement was just prior to the accident, stated that the yard crew had taken cars from the Twenty-Second street yards, where he was injured, to the Thirty-Eighth street yards; there the crew picked up some loaded grain cars, some of which were interstate; that a portion of the cars picked up were to be delivered to the Belt Railroad and some to be returned to the Twenty-Second street yards, where they were to be placed in interstate freight train No. 82 which was then being made up in the Twenty-Second street yards. All of the other witnesses contradicted appellee. They said all of the cars from the Thirty-Eighth street yards were for delivery to the Belt Railroad and train No. 82 was not then being made up. After the engine returned to the Twenty-Second street yards, it went on the east repair track, removed all of the cars on that track, then backed into the west repair track, removing all of the cars except the car from which appellee fell; the cars removed having been repaired, and the car from which appellee fell being unfinished.
Appellee testified that, when the engine backed into the west track, the cars on the track being spaced some distance apart were all shoved together, including the last car, the one from which he fell; that the slack then ran out between the cars, pushing the last car several feet towards the end of the repair track and necessitating ...