ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
MR. JUSTICE MCKENNA delivered the opinion of the court.
Error to review a judgment of the Circuit Court of Appeals affirming a judgment of the Circuit Court for the Northern District of Illinois for $8,000, in an action brought by Brown, defendant in error, against the railway company for injuries received by him while working as a switchman in the railway company's yards at Chicago.
The action was brought in the state court and removed on the petition of the railway company to the Federal court.
The first count of the declaration is based upon a violation of the Safety Appliance Act, and it also contains allegations based upon the Employers' Liability Act. The company was engaged and Brown was employed in interstate commerce. The fourth count charges negligence in failing to fill up the space between a running rail and a guard rail, in which space Brown's foot caught, where it was run over and his leg cut off.
The case was tried to a jury, resulting in a verdict for $8,000 for Brown upon two counts (a) for a violation of the Safety Appliance Law, (b) common law negligence in not blocking the switches. Judgment was entered upon the verdict, which was subsequently affirmed by the Circuit Court of Appeals, 185 Fed. Rep. 80.
For the purpose of the contentions which are made here, the following facts must be accepted to be established, as summarized in the opinion of the Circuit Court of Appeals (p. 82):
"The defendant in error, a switchman in a large switch yard, was called upon, at night, to uncouple some cars.
Not being in touch, by signal, with the engineer, he conveyed his signals to another switchman in advance of him, who conveyed them to the engineer. The cars were in motion on a car track at the time. The uncoupling was to be done by means of shoving the cars in motion. Had the safety appliance been in order, this could have been accomplished by defendant in error while walking at the side of the train. But the safety appliance on the side of the car on which he was working at the time would not operate. He gave three or four jerks to it, which failed to open the coupler. He then reached in between the cars and attempted to lift the coupler pin with his fingers, which he was unable to do. He then attempted to reach the pin on the adjacent coupler, in order to lift that with his fingers. During all this time he was walking beside the cars, which were moving slowly. The pin lifting rod on the other car projected, not towards him, but away from him; and as he was reaching for the coupler pin on this adjacent coupler, his foot slipped, and a low brake beam striking his foot, shoved it into an unblocked guard rail, where it was run over and his leg cut off. Had he, under these circumstances, abandoned the uncoupling altogether until the car had come to a standstill, he would have been saved the accident."
These being the facts, the railway company asserts error in the trial court in not directing a verdict for the company, on the ground (1) that Brown, in leaning between the cars while they were in motion, was guilty of contributory negligence as a matter of law, and (2) in instructing the jury, in effect, that Brown was not chargeable with contributory negligence by the mere fact of going between the cars.
The contentions are resolvable into one and may be said to be covered by the charge to the jury which the railway company attacks. The court, after stating that the first ...