Appeal from the District Court of the United States for the District of New Jersey; Wm. N. Runyon, Judge.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMPSON, District Judge.
On the occasion in question, a Bush Terminal freight car float was moored to a float bridge of the Erie Railroad Company in the navigable waters of the Hudson River at Jersey City. A switching crew, consisting of a conductor, two brakemen, an engineer and fireman, was engaged in shunting loaded freight cars onto the float. One draft hand been placed on its southerly track. The engine with three empty pushers and the remaining draft of five loaded cars then proceeded to move eastwardly over the bridge and onto the northerly track of the float.The movement was being made under the direction of the conductor with the aid of two brakemen, Irons being nominally the forward brakeman and Smith the rear brakeman, though in the direction of the movement their positions were physically reversed. When the draft came to rest on the float, Smith mounted the most easterly car and, either at once or later, put on its brakes and the brakes of other cars. Irons set the brake of the westerly car, descended to the deck, and, either at the command or with the assent of the conductor, uncoupled that car from a pusher, thus cutting out the draft, and signalled the engineer to go ahead. This the engineer did by moving the engine only a few feet yet far enough to carry the last pusher off the float and onto the bridge, leaving a space of twelve or fifteen feet between it and the first car.
The float had a hump in the middle from which the deck inclined fore and aft. All at once the draft of cars began slowly to move toward the bridge. Irons picked up a block and in his unsuccessful effort to chock a wheel had one of his feet caught by the block and the other by a frog or a rail, causing him to fall under the car where he sustained an injury resulting in the loss of a leg. He brought suit under the Federal Employers' Liability Act (45 USCA §§ 51-59) for this personal injury and, after verdict, had the judgment from which the defendant railroad company now appeals, assigning several errors involving additional facts which we can state more appropriately in the separate discussion of each assignment.
The first error the defendant charges to the court was its refusal to direct a verdict in its favor on three grounds: (a) That there was no evidence of negligence on its part; (b) that as matter of law the plaintiff assumed the risks of his injury; and (c) as matter of law the accident was solely due to the contributory negligence of the plaintiff.
On the question of negligence of the defendant two issues were raised and submitted and certainly one, and maybe both, were decided. The first was whether or not the brakes on the cars were defective or "inefficient" in violation of the Safety Appliance Act (45 USCA § 1 et seq.); the other whether Smith, the rear brakeman and Irons' fellow-workman, was negligent in performing his work of promptly and efficiently setting the brakes when the draft came to rest. If a finding on both of these issues could not be sustained by the evidence, then, clearly, a verdict should have been directed for the defendant. But the two issues were submitted in the alternative and if either could be found for the plaintiff on supporting evidence that would be enough under proper instructions.
there was evidence that had the brakes been efficient, the one brake set by Irons and the two (or more) set by Smith before the cars began to move would have held the draft, raising the permissible inference that the brakes were defective. Though expert in quality, this, nevertheless, was evidence for the jury to accept or reject. The defendant, however, maintains that there was absolutely no evidence that Smith had set even one brake completely and securely before the cars began to move and, accordingly, that the jury, in finding the brakes defective, was allowed to base their inference not on a proven fact but on another inference. Manning v. John Hancock M.I. Co., 100 U.S. 693, 25 L. Ed. 761. Opposed to the defendant's position we find positive testimony (R 132) that Smith applied the brakes on the two rear cars when the draft was stationary. There is testimony that he applied the brakes on the other cars but it is uncertain whether, when he did so, the cars were stationary or moving; and there is also testimony that all the brakes set by him were securely set in that by a later test they could be moved only one notch more. We think this is valid evidence on the issue of defective brakes and sustains the jury's possible finding on this one of the two issues.
And as to Smith's negligence there is evidence that sustains the jury's possible finding for the plaintiff on that issue, for it is certain from the character of the verdict that on either one or the other of these issues the jury found for the plaintiff. In respect to this second issue the defendant, somewhat contrary to its position on the first, maintains there was no evidence to dispute Smith's word that he so completely and securely set the brakes that when, after the accident, he went over the cars, as ordered, he was only able to take up each brake one notch more by using his entire strength with a brake stick. But the negligence charged to him as a follow-workman was not in failing adequately to set the brakes but in failing seasonably to set them. It was his duty to jump on the cars as they came upon the float, climb to the top and apply the brakes at the east end and work west as soon as the cars stopped. Irons immediately applied the brake by hand on the westerly end of the first car and then, as was his duty, climbed down to make the cut. But Smith was late in getting up on the cars and the evidence shows that if he had promptly and properly performed his duty and had jumped upon the cars when they were going onto the float and had begun tightening the brakes as soon as the cars had stopped, he would have had time to tighten all the brakes while Irons was tightening one, descending to the ground and preparing to make the cut. Everyone agrees that if the brakes had been efficient and all had been set the draft could not have moved. We think this evidence was enough on which to submit the issue of Smith's negligence to the jury.
The defendant's next ground for a directed verdict was that, as matter of law, the plaintiff assumed the risks of his injury. there is no question that in an action under the Federal Employers' Liability Act the defense of assumption of risk (save in specified cases) continues as at common law. Seaborad Air Line v. Horton, 233 U.S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L.R.A. 1915C, 1, Ann. Cas. 1915B, 475; Chesapeake, etc., R. Co. v. Proffitt, 241 U.S. 462, 36 S. Ct. 620, 60 L. Ed. 1102; Southern Pacific Co. v. Berkshire, 254 U.S. 415 41 S. Ct. 162, 65 L. Ed. 335. but the legal responsibility of the employee in assuming risks depends somewhat on whether they are a part of or incident to his employment, and are, or should be, known by him. The defendant maintains that the risk of the cars moving on the float prior to the brakes being fully and efficiently set by Smith was an obvious risk of Irons' employment which he assumed as a part of his contract of hire. But Smith's action was charged as negligence and the jury found that either his neligence or that of the defendant in supplying inefficient brakes was the proximate cause of Irons' injury. An employee does not, under the Federal Employers' Liability Act, assume as a part of his contract of employment the risk of the neligence of a fellow-employee or of his master in supplying inefficient appliances in violation of the Safety Appliance Act.
The final ground on the motion for a directed verdict was that the accident was due solely to the negligence of the plaintiff himself. If that were true, he of course should not recover. Davis v. Kennedy, 266 U.S. 147, 45 S. Ct. 33, 69 L. Ed. 212; Illinois Central R. Co. v. Skaggs, 240 U.S. 66, 36 S. Ct. 249, 60 L. Ed. 528. Having held that there was evidence to submit the alternative issues of negligence on the part of the defendant to the jury, it would be legally inconsistent to say that the learned trial judge should have directed a verdict for the defendant on the ground that the plaintiff was solely negligent. The defendant's main contention on this issue is that Irons should have satisfied himself before making the cut that Smith had properly performed his duties by fully and efficiently applying the brakes. Smith's duty was fixed by rule or practice and was known to Irons, hence we think Irons might have assumed that Smith had performed his duty. However that may be, the conductor was in charge of the movement, both Smith and Irons were within his view and Irons made the cut on the conductor's direction or with his assent.
We find no error in the court's denial of the motion for a directed verdict.
The defendant next charges error to the trial court in denying its motion for a new trial based on the ground that the damages were excessive. The appellant recognizes the general rule that a trial court on a motion for a new trial may in the exercise of its discretion deny the motion and that its action is not a subject of review by an appellate court. Henderson v. Moore, 5 Cranch, 11, 3 L. Ed. 22; Railway Co. v. Heck, 102 U.S. 120, 26 L. Ed. 58; Ayers v. Watson, 137 U.S. 584, 11 S. Ct. 201, 34 L. Ed. 803; Pickett v. United States, 216 U.S. 456, 30 S. Ct. 265, 54 L. Ed. 566. It maintains however as an exception to this very firm rule that where the denial of the motion is an abuse of discretion or due to the application of erroneous legal principles, it is a subject for review on appeal.
We discern nothing in the matter raised on the motion for a new trial involving legal principles and capable of an erroneous application and therefore reviewable within the sense of Chesapeake & Ohio Railway Company v. Gainey, 241 U.S. 494, 36 S. Ct. 633, 60 L. Ed. 1124, and of our own case of Stetson v. Stindt (C.C.A.) 279 F. 209. Here the learned judge was dealing only with the amount of the jury's verdict in an action of tort and was called upon to exercise his discretion in determining ...