Before SCHNACKENBERG, PARKINSON and KNOCH, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Plaintiff's cause of action for personal injuries, based upon the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., was ordered dismissed by the district court and plaintiff has appealed.
The amended complaint charged in count I that plaintiff was injured due to the negligence of defendant in failing to furnish him a reasonably safe place in which to work, and in failing to protect plaintiff against the occurrence which resulted in his injury, while he was working pursuant to defendant's orders. In count II it was alleged that the doctrine of res ipsa loquitur applied to the case. A motion to strike count II was made by defendant but was never acted upon by the district court. It does not appear from the record that defendant filed an answer to the amended complaint.
When the case was called for trial, the district judge stated that the cause had been the subject of several pretrial conferences, that, pursuant to rule 16 of the Rules of Civil Procedure,*fn1 the court had segregated the issue of liability from the issue of damages and that plaintiff's counsel might state what plaintiff's evidence (as to liability) would be if the witnesses were called. Plaintiff's attorney thereupon stated:*fn2
Plaintiff was injured between 1:00 and 1:30 A.M. on August 2, 1955, while serving as engineer on a locomotive of defendant in its Hawthorne Yards in Indianapolis, Indiana. While the locomotive was moving, plaintiff was hit on the left back side of his head, by a piece of steel, which was about the size of a pint milk bottle and had a sharp point on one end. (This object was received in evidence.)
The Hawthorne Yards is a classification yard where trains are made up as they come in from various railroads. In the area where this incident occurred there are no buildings near the right of way but there is an overhead highway viaduct. Cars loaded with old scrap were hauled from Indianapolis by defendant. Prior to the time of the injury, defendant did a lot of switching of cars along that particular section and plaintiff saw debris and objects along the track there more frequently than otherwise in the Hawthorne Yards, some of these objects being similar in size and shape to the object which hit plaintiff.
In operating the locomotive, it was necessary for plaintiff to keep a portion of his head out of the cab window so that he could watch for signals. His head was in this position when he was struck.
A day or two after the accident, Jack Linn, defendant's claim adjuster, came to the hospital where plaintiff was confined, and stated that defendant "had reports that for some period of time before" plaintiff's injury "there had been debris and objects thrown at the Diesel locomotive as they [sic ] came into the Hawthorne Yards at night, because they came in with their bright lights on. * * Thrown by other people, he believed to be switchmen, and they were going to investigate this." Assistant foreman of engines Olson told plaintiff when he visited him at the hospital "that there had been reports of objects being thrown at the Diesel engines before I had been injured on August 2, 1955."
Plaintiff's testimony about the statement of Mr. Linn would be corroborated by plaintiff's wife and Robert Van Baker, if called as witnesses.
Engineer C. B. Hartman would testify that he picked up the object in question off the deck of the Diesel locomotive and that he heard it hit the deck or floor of the locomotive and it had been thrown.
The deposition of Robert Van Baker, taken on behalf of defendant, would show that he was a yard conductor of defendant and that he was a patient in the same hospital room with plaintiff and heard the defendant's claim agent tell plaintiff "we had had reports of objects being thrown at the engines there in the yards," that "we have had reports" and that "they was [sic ] going to check into them".
When plaintiff's attorney completed his statement, the court granted defendant's motion to dismiss the case, at plaintiff's costs. The court said: "The facts are clear here that no act of negligence attributable to this defendant has been or can be proved by this plaintiff."
1. Whether the court erred in dismissing plaintiff's action must be determined by considering the facts appearing in the record in the same way that a court would consider such facts if, at the close of plaintiff's case upon a trial, defendant had made a motion for a directed verdict in its favor. In either event, the court is required to consider the evidence in its aspects most favorable to plaintiff. The issue for us is whether, considering all the foregoing facts and circumstances together with all reasonable inferences favorable to plaintiff, there was any evidence from which a jury could reasonably find defendant guilty of negligence which contributed in whole or in part ...