Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.
Plaintiff, Jackson, a railroad hostler helper, suffered a right inguinal hernia, indirectly acquired, while performing his duties as an employee of defendant Railroad. He asks us to reverse a judgment entered below on defendant's motion for a directed verdict, and order a new trial on his action brought under the Federal Employer's Liability Act.*fn1
Defendant moved for a directed verdict at the close of plaintiff's evidence, and the trial judge took it under advisement. That motion was renewed and again taken under advisement at the close of all the evidence. When the trial jury was unable to reach a verdict, they were discharged and defendant's motion for a directed verdict was granted and the court ordered judgment for defendant from which plaintiff appealed. No question, according to both sides, arises on the pleadings.
The record discloses the following undisputed facts:
Wet sand, delivered in gondola cars, was brought to defendant's sand house and shoveled through trap doors into that structure where plaintiff worked drying such sand. Incoming sand was thus dumped and stored in one end of that shed opposite to which was a window, electric light and coal stove surrounded by a perforated steel screen. A wooden barrier about four feet high was located approximately 10 or 12 inches from the steel screen, forming a partition between, and dividing, wet from dry sand. Standing on the damp sand side, Jackson participated in the drying process by shoveling wet sand over the steel screen into the space between screen and stove. On the occurrence date that heating unit was producing heat from shortly after 4 P.M., November 21, 1951. When this sand dried it flowed through the screen and was removed by another worker. Defendant supplied Jackson with several shovels and a pick with which to perform his work. These tools were not defective in any way and were available to defendant at the time of his alleged injury.
In short, plaintiff alleges that because the trap doors were partially open due to heaps of sand and because rain during summer months fell into the sand house through large unrepaired holes in the roof, as did snow and sleet, quantities of sand were frozen into large masses.A foreman for the defendant Railroad, and called by that party as a witness, testified (T.R. 107) as follows:
"Q. Have you ever ordered Mr. Jackson to carry any frozen lumps of sand by hand?
"A. No sir, absolutely not."
On cross-examination of that witness this portion of his testimony is stressed by plaintiff:
"Q. Did you ever give Mr. Jackson any instructions of any kind about drying sand?
Plaintiff picked up a lump of frozen sand which was part of a larger lump he had chopped off the heap of sand. When he started to reach over the barrier the frozen lump in his hands started crumbling, and he ...