the partially tightened brake wheel with one hand it was at that moment when the wheel 'kicked back.' Was plaintiff operating the hand brake with due care at this moment? Plaintiff offered no evidence from which the jury could infer that plaintiff's attempt to hold a partially tightened hand brake with one hand was or was not careful operation of a hand brake.
Even if it can be assumed that plaintiff performed the entire brake tightening operation with due care, he failed to produce evidence from which the jury could reach a rational conclusion as to whether the subsequent performance of the brake was in the normal, natural and usual manner. Plaintiff failed to introduce any evidence regarding the mechanism of the brake or any other evidence from which the jury could rationally deduce whether or not the 'kick-back' or spinning of the brake wheel was the normal and usual performance of a brake wheel under the circumstances. Certainly, if an efficient wheel would 'kick-back' under the same conditions, the jury could not be permitted to find that the brake was inefficient, merely because it spun around. Plaintiff failed to produce any evidence which would permit the jury to make a comparison between the performance of the brake wheel in the instant case and a purportedly normal reaction of a brake wheel under the same circumstances so that the jury might rationally conclude that the brake in question did not perform in a normal, natural and usual manner.
From the paucity of proof offered by plaintiff the jury might logically draw the inference that the brake was inefficient and might have just as logically drawn the inference that the brake reacted normally and efficiently under the circumstances. Since the evidence supports equally two inconsistent inferences of fact, it establishes neither. In this situation the jury should not have been permitted to draw conclusions from plaintiff's evidence regarding the inefficiency of the brake since their conclusion of necessity would have to be based on conjecture and speculation. Grand Trunk Western R. Co. v. Holstein, 6 Cir., 67 F.2d 780. The burden was upon plaintiff to prove that the brake acted inefficiently in order to recover. This he failed to do. Therefore, as a matter of law, judgment must be for defendant. Pennsylvania Railroad Co. v. Chamberlain, 288 U.S. 333, 53 S. Ct. 391, 77 L. Ed. 819; United States Fidelity & Guaranty Co. v. Des Moines Nat. Bank, 8 Cir., 145 F. 273; Patton v. Texas & Pacific Railway Co., 179 U.S. 658, 21 S. Ct. 275, 45 L. Ed. 361.
Plaintiff has relied on a number of cases
which have allowed recovery upon proof that a hand brake failed to perform normally when operated with due care. These cases set forth the accepted interpretation of inefficiency under the hand brake provision of the Safety Appliance Act. However, they are all distinguishable on their facts from the instant case. In each of the cases cited by plaintiff there was adequate proof that plaintiff used the brake with due care in the normal and ordinary manner, and that the brake did not perform normally. There was also evidence as to the mechanical operation and safeguards of the brake. Thus in each of these cited cases the plaintiffs presented evidence from which the jury could find that the hand brake was inefficient and could return a verdict in their favor.
As a matter of law, plaintiff failed to prove a case by competent evidence under the Safety Appliance Act. Since the jury's verdict in favor of the plaintiff as indicated by the answers to the interrogatories, was based solely on a theory of recovery under that Act and plaintiff failed to prove a case under the Act as a matter of law, defendant is entitled to judgment non obstante veredicto. Montgomery v. Northern Pac. R. Co., 8 Cir., 132 F.2d 213.
Defendant's motion for judgment non obstante veredicto is granted.