Before BIGGS and McLAUGHLIN, Circuit Judges, and RODNEY, District Judge.
Valentine Raudenbush suffered fatal injury while taking part in a shifting operation in defendant's yard in Philadelphia on the night of February 2, 1944. This action was brought by his wife, as administratrix, to recover damages for his death under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., the Safety Appliance Acts, 45 U.S.C.A. §§ 1-16, and the Boiler Inspection Act, 45 U.S.C.A. §§ 22, 23.
The decedent was serving as brakeman of a yard crew. The crew began work at 10:30 in the evening, about an hour after a light snow had stopped falling. In the yard there were, among others, five freight cars on track Short 29 and nine cars with a yard engine coupled to their eastern end on track 12 Lead, and all of these cars had at least a light covering of snow.
The conductor, who was in charge of the crew, was instruced to run around the nine cars with the yard engine, shove the nine cars in on Short 29, couple them to the five cars already there, and to lay there and wait for train 97 to come from the piers. To "lay there" meant to leave the engine coupled to the cars. With the exception of the engineer, who worked solely by hand signals from the other members of the crew, and the fireman, the entire crew was familiar with the instructions as given to the conductor. The decedent was specifically instructed by the conductor as to the nature of the move.
The crew proceeded to carry out the instructions. It was dark, as the yard had no system for general overall lighting and the engine headlight was off. The yard engine was run around to the western end of the nine cars and coupled to the westernmost car, which was a gondola, and the nine cars were then pushed eastward and coupled to the five cars on Short 29. At this point, with all fourteen cars coupled and motionless and with the engine facing them and coupled to the gondola, which was the last car on the western end of the fourteen, the decedent gave the engineer the slack signal for the purpose of enabling the decedent to pull the coupling pin and cut the engine from the cars. This action seems to have originated with the deceased and was not covered by any instructions. The engineer gave him slack and the pin was pulled. The engine was then backed about fifteen feet and stopped. The decedent, Raudenbush, was not hurt in the uncoupling.
The cars, almost immediately after the engine was cut from them, started to roll slowly to the east down a slight incline in the tracks. The conductor, seeing this, shouted to the engineer to couple up again. The engineer then turned on the engine headlight for the first time and started the engine moving slowly toward the cars.
Meanwhile the conductor was walking toward the moving cars near the engine. He had seen a form go up over, reach and grab for the gondola on its eastern end - next to the second car - and realized that the form was Raudenbush. The next time he saw Raudenbush, the latter's body was being rolled between the wheels of the gondola. The conductor immediately gave the engineer the stop signal, and the engine came to a halt. It never got within more than two car lengths of the western end of the gondola. Finally the gondola passed the body of Raudenbush and stopped, and he lay in the middle of the tracks between the engine and the gondola, about a car length and a half from the engine and a car length from the gondola. Hence, the engine at no time touched him. He was taken to the hospital where he died shortly afterwards.
An examination of the gondola after the accident showed a slip-mark or skid-mark in the snow on the brake sill. It was thus inferred that Raudenbush had run eastward to the eastern end of the gondola, climbed up on the gondola, had slipped while attempting to apply the brake of the gondola and had fallen between the cars.
The jury was charged with returning a verdict for the plaintiff if it found either of two sets of facts: (1) that the defendant was negligent in failing to remove the ice or snow from the gondola and that the presence of ice or snow was the proximate cause of the accident, or (2) that the engine headlight should have been on when the cars started rolling and that the failure to have it on was the proximate cause of the accident. These two sets of facts were to be considered in relation to the defendant's duty under the Federal Employers' Liability Act to use reasonable care in providing its employees with a safe place to work. The Safety Appliance Acts and the Boiler Inspection Act were declared by the judge to be out of the case.
The jury below returned a verdict in favor of the plaintiff, but the trial court granted defendant's motion to set aside the verdict and judgment thereon and entered judgment for defendant in accordance with his prior motion for a directed verdict, under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
The case comes before this court on an appeal by plaintiff.
For clarity of reasoning we transpose the contentions of the appellant and treat them in the following order:
1. Was the railroad company guilty of a violation of the Safety Appliance Act in failing to make the sill of the gondola car "secure" by reason of its failure to remove any ice or snow therefrom?
2. Without regard to the Safety Appliance Act, was the railroad company guilty of negligence in failing to remove any ice or snow which might have been upon the sill of the car?
3. Was the railroad company guilty of negligence in failing to maintain the headlights on the locomotive at the time of the accident,
(a) as a violation of Rule 131 of the Interstate Commerce Commission as promulgated pursuant to ...