Before EVANS, SPARKS, and KERNER, Circuit Judges.
Plaintiff sued to recover damages and won a verdict and a judgment which evidenced the jury's estimate of the amount he should receive for injuries sustained when a defective freight car door fell on him, from a moving train. This appeal is from that judgment.
The accident occurred, September 8, 1941, about 6 P.M. while plaintiff a section worker, was lounging, after work, outside the bunk car in which he lived in the "Landers Yards" located in Chicago at 79th Street. At the time the door fell, the car was being moved as a part of a train composed of defective cars, on a track adjacent to the bunk car.
The action was thrice tried: The first resulted in a jury disagreement; the next in a verdict which was set aside upon the defendant's unopposed motion. The third trial resulted in the verdict and judgment here combated.
Appellant assails the judgment from four angles. It charges the court erred:
(1) In denying its motion for a directed verdict, because (a) the evidence failed to show any negligence on its part, and (b) if its first urge be not accepted, it owed no duty to plaintiff other than that to a licensee and the evidence failed to show any breach of such duty;
(2) Because of error in refusing to direct a verdict when the evidence showed affirmatively and conclusively that the plaintiff was guilty of contributory negligence;
(3) In its instructions to the jury; and
(4) In rulings on admission of evidence.
The photograph here reproduced, informs, better than words, the car and track situation at the scene of the accident.
Plaintiff was a worker in a section crew, employed in repairing and maintaining defendant's road bed and tracks. He received 45 an hour and had worked for about six years during the spring and summer months, receiving approximately $500 to $600 a season. Defendant furnished a "bunk car" for the convenience of these laborers and also provided them with a cook whose salary it paid. The men paid for their food, which the cook prepared. Several co-workers lived in the same car, while others chose to live outside the yards. Plaintiff's residence in the bunk car was not compulsory. It was optional with him, whether he lived there or away from the yards in a Chicago boarding house. This bunk car was located about 35 feet from the lead track where the defective cars were being switched in numbers, as a train.
On the day of the accident, plaintiff returned from work about 4 P.M. and cleaned up, finished his evening meal and was sitting on a tie in front of the bunk car. He was resting and relaxing while enjoying a cross word puzzle.
Some of his co-workers had been lounging or relaxing in front of the bunk
(Illustration omitted) car with him, but left, to pursue other recreations, before the accident. He was cognizant of the movement of the trains, or groups ...