Before MAJOR, LINDLEY and SWAIM, Circuit Judges.
This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for injuries sustained by plaintiff, Otis P. Teets, an employee of the defendant, Chicago, South Shore and South Bend Railroad (hereinafter referred to as the Railroad).
The jury found the Railroad guilty of negligence, and assessed plaintiff's damages at $8,500.00. The Railroad moved pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., to have the jury's verdict, and the judgment entered thereon, set aside and to have judgment entered in accordance with its motion for a directed verdict.
The trial judge granted the motion for judgment notwithstanding the verdict and filed a memorandum opinion in which he stated: "* * * I therefore hold as a matter of law that the plaintiff utterly failed to establish any negligence on the part of the defendant and that the plaintiff's own negligence was the sole, proximate cause of the accident in question."
When ruling on a motion by the defendant for a directed verdict the trial court may consider only the evidence favorable to the plaintiff and all reasonable inferences which the jury may draw therefrom which tend to support the plaintiff's case. Lavender v. Kurn, 327 U.S. 645, 66 S. Ct. 740, 90 L. Ed. 916; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S. Ct. 409, 88 L. Ed. 520; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S. Ct. 444, 87 L. Ed. 610. Under this standard the trial judge is precluded from passing on the credibility of witnesses or weighing the conflicting evidence. Lavender v. Kurn, supra; Tennant v. Peoria & P.U. Ry. Co., supra.
Thus, if there is a choice of conflicting versions of the way the accident happened, the decision as to which witness is telling the truth, and inferences to be drawn from uncontroverted as well as controverted facts are for the jury. Stanford v. Pennsylvania Ry. Co., 7 Cir., 171 F.2d 632.
The question in the instant case is: whether there was sufficient evidence to justify submission of the case to a jury. Wilkerson v. McCarthy, 336 U.S. 53, 69 S. Ct. 413, 93 L. Ed. 497, rehearing denied 336 U.S. 940, 69 S. Ct. 744, 93 L. Ed. 1098.
The plaintiff had been employed by the Railroad for a period of 28 years and during this time he had served exclusively as a motorman or engineer. On March 4, 1952, the date of the accident in question, plaintiff was operating Train No. 29, as he had done for approximately four years.
On the night of the accident Train 29 left the Randolph Street station, Chicago, Illinois, at 5:17 P.M. and proceeded eastward towards South Bend, Indiana. It was standard practice that Train 29 would unload its Gary passengers at Gary, Indiana, and receive Train 203's through passengers for points east of Gary - Train 203 had left the Randolph Street station about nine minutes prior to Train 29's departure.
Train 203 upon reaching the Gary station was sidetracked onto Track 2, a siding immediately north of and parallel to the eastbound main line. This was standard operating practice of which plaintiff was aware.Train 29, on the other hand, was to remain on the eastbound main line into the Gary station where it was to stop and discharge and receive passengers. The switch controlling entry onto Track 2, which had been opened to permit Train 203 to enter the siding, was open as Train 29 approached the switching point and Train 29 went onto Track 2 and collided with the rear of Train 203.
Between what is called the Pennsylvania overhead and the Gary station there are four signals controlling the approach of eastbound trains. They are, going east, a signal just east of the overhead, Signal 593 at Marshall Street, Signal 591 at Monroe Street, and what is called a "low switch stand" signal. It is only the latter three signals which are of importance in this case.
Signal 593 is approximately 7/8 of a mile west of the Gary station. It is 21 feet in height, and on the top of its mast is an order board with three color units in a vertical position. The top unit is green and is about 18 feet above the rails, the bottom unit is red and is about 16 feet above the rails, and the middle unit is yellow. Rule 10 of the Railroad's operating rules provides that red is an indication to stop; yellow, an indication to proceed at restricted speed; and green, an indication to proceed.
Signal 591 is identical to Signal 593 except that there is an additional order board about three feet below the top order board. The lower order board contains two color units in line vertically; the top unit is yellow and the lower unit is red. If the signal on the top order board is yellow - the signal on the lower order board would be red - this is an indication that the eastbound main is clear. If the signal on the lower order board is yellow - the signal on the top order board would be red - the engineer would expect the ...