Before LINDLEY, SWAIM and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
This action was brought under the Federal Employers' Liability Act*fn1 to recover for personal injuries allegedly caused by defendant's negligence. The jury returned a verdict for $17,500, and defendant appeals from the judgment thereon after denial of its motion for judgment notwithstanding the verdict.
To sustain its appeal, defendant contends that there is a lack of substantial evidence to sustain the verdict and that the district court committed error in submitting an instruction which authorized the jury to find that defendant had violated the air-brake provisions of the Safety Appliance Act.*fn2
Plaintiff, a brakeman, was injured on June 18, 1953, at Imlay City, Michigan. During a daylight switching operation of the train upon which plaintiff was working, he, in a manner which is in dispute, suffered an injury to his left arm. At Imlay City defendant has a branch line running in a general northerly and southerly direction which connects with its main east- and west-bound line. The branch line is connected with the main line by a "Y" which extends in a general northeasterly direction to the main line.
Plaintiff's train backed northeasterly onto the "Y". The "Y" track curves to the east and runs parallel to the east bound main line track, crossing Handley Street. It begins paralleling the main line track about 240 feet west of Handley Street, according to a scaled map in evidence. About 411 feet west of Handley Street a transfer track branches off from the lead track and runs east crossing Handley Street.
The crew was required to set off 6 or 7 cars on the transfer track. These cars were in the middle of the train. Three movements were required because of the location of the cars and the tracks available. In the first movement the engine backed the cars onto the lead track and the flagman, King, then cut off 5 cars east of the Handley Street crossing. In the second movement, the engine pulled the remaining cars forward until they cleared the switch which controlled the lead and transfer tracks. Plaintiff then threw that switch lining it with the transfer track and the engine backed the train east on the latter track, where King cut the train east of the street crossing. The remaining 5 cars were then pulled forward to again clear the switch separating the lead track and the transfer track. Plaintiff again threw the switch to line up the "Y" track for the lead track. The third movement was to back down the lead track and couple onto the tail end of the train standing east of the Handley Street crossing. During this movement plaintiff was injured.
There is a dispute in the evidence as to the distance from the street crossing to the nearest car to the east on the lead track.Plaintiff said it was 4 or 5 car lengths or about 160 to 200 feet. Morgan, the conductor, said the distance was only a few feet. Fireman York said it was about 2 car lengths. Brakeman King said it was about a car length.
There is also a dispute as to what duties brakeman King was then performing. Defendant contends that King was protecting the street crossing and was to make the coupling in the third movement, and that he was passing signals to the engine at the time of the accident. Plaintiff contends that after throwing the switch for the third movement onto the lead track, he gave a signal to the fireman that he was going over to the other side, (to the north) which would be the engineer's side, and that he then gave the fireman a slow back-up signal because he wanted to be sure that he could get back on more level ground before catching the lead car, because, as he said, the terrain near the transfer switch was rough, - the ballast there "does not pack down, and it is very slippery." Plaintiff testified that he planned to board the car so as to "flag the crossing", because King was back near the cut of standing cars to make the coupling and because a rule known as 103 required plaintiff to ride the lead car in this movement. The rule, read into evidence, provides inter alia*fn3 that a man must ride on the foremost car to warn persons on the highway.
Plaintiff testified that he walked east about 3 or 4 car lengths from the transfer switch and then he attempted to board from the north side the front end of the lead car which was then about 7 car lengths west of the street crossing. While he was getting on the car, plaintiff estimated the train was moving at least 7 or 8 miles an hour and that the particular movement involved was usually made at a speed of about 2, 3 or 4 miles an hour at that place. He further testified that he mounted the car when it got to him, got a good handhold, put his right foot in the stirrup but did not get both feet in the stirrup, when, after the cars had moved about a half of a car length, there was a sudden jerk, caused by the slack running out of the string of cars resulting from the engineer applying the engine brake instead of the train brake, even though the train had air in the train line system on that day. He testified that the use of the train brake or automatic air brake is to make a smoother stop because it applies the brakes to all of the cars, while the engine brake which is applied to the engine alone causes the slack to run out.
He said that the cars slowed down to 3 or 4 miles per hour and were not stopped. He further testified that the jerk caused him to be thrown around the end of the car, and pulled his feet out of the stirrup although he managed to hang on to the handholds. He was then dragged. He looked for the flagman and saw him giving stop signals, but the engineer did not obey these signals. He further testified that he managed to hold on in this fashion for 4 or 5 car lengths or approximately 250 feet. He further testified that, as he was being dragged along, a wire which operated a switch and extended 7 or 8 inches above the ground, about 15 to 22 feet west of the west side of the crossing caught on his right heel causing his left foot to "flop over," so that the wheel of the train caught his pants leg between it and the rail, breaking his handhold and he fell flat on his back. He tried to crawl away from the train but a wheel caught his left arm and hip and ran up into the muscle and crushed the bone and was just about to go over the shoulder joint when the train stopped.
Brakeman King testified that, after the cars were cut off on the transfer track, he went to the street crossing to protect it, and both he and the engineer testified that from this point King directed the third movement. He said that the maximum speed of the movement was about 8 miles an hour which was attained at about the switch stand, about 150 feet west from where plaintiff claimed he had attempted to mount, and that at the switch stand the engineer shut the throttle off and they "drifted" on a slight upgrade. Fireman York testified that at no time after the movement started did the engineer apply any brakes until the emergency application near the crossing; that the slack never ran out; and that there was no reason for the engineer to apply the brakes at the place where plaintiff claimed that he attempted to mount the lead car.
Engineer Wix testified that the maximum speed attained in backing was about 6 or 7 miles an hour, which was at the switch stand, where he closed the throttle and the engine slowed down to 4 or 5 miles an hour for about 2 car lengths. He further testified that he was looking to the east and as he came around the curve he could see King standing about 8 feet west of the Handley Street crossing and that King was looking toward the engine and giving signals; that the first signal King gave was that there were 2 car lengths to go before the cut would couple onto the standing cars, and that Wix did nothing upon receiving this signal. The next signal was an emergency stop signal, whereupon he applied the brakes in emergency on the engine and cars and stopped in about 14 feet. He further added that at no time prior to the emergency signal did he see plaintiff during the back-up movement.
Brakeman King said that as the cars were backing towards him at about 4 or 5 miles an hour he saw plaintiff on the fireman's side and when the lead car was about a car length away from the west edge of Handley Street he saw plaintiff start around the end of the car and go over the drawbar, whereupon King looked to the east and signalled the engineer that he had 2 car lengths to go. He said he heard something and turned around and saw plaintiff being dragged by the car, whereupon he immediately gave an ...