The opinion of the court was delivered by: GOURLEY
This action is instituted by the Administrator of the Estate of Berardino Campagna in behalf of the widow and children of the deceased under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.
The Court left for the determination of the jury whether the defendant had complied with its duty under the Federal Employers' Liability Act to use reasonable care and in providing its employees with a safe place to work, and the pecuniary loss sustained by the widow.
Interrogatories were submitted relative to negligence of the defendant, contributory negligence of the deceased, and the pecuniary loss suffered by the widow. The jury found 50% negligence and 50% contributory negligence, and returned a verdict in favor of the Administrator in behalf of the widow for $ 1500.
The matter before the court relates to the defendant's motion to set aside the verdict or for judgment notwithstanding the verdict under Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A.
As a basis for the motion two contentions are made:
(1) That evidence of defendant's negligence was not sufficient to take the case to the jury.
(2) That the deceased was guilty of contributory negligence as a matter of law, which would completely bar the right of the administrator to recover.
The issues thus presented require a statement concerning the manner in which the deceased met his death while in the employment of the defendant.
The operations of the defendant and the tracks which were used incident thereto were either owned or under the immediate supervision and control of the defendant.
On December 31, 1942 and for many years prior thereto the deceased had been employed by the defendant as a trackman. The duties of the deceased in the capacity of a trackman included the cleaning of switches, side tracks and other tracks of the defendant. The tracks of the defendant run in an easterly and westerly direction. One of the tracks was used for through traffic, and the side track, which was adjoining to the main track, was used for meeting and passing of trains and to make up trains. In connection therewith there were many spur tracks that led into various industries. As a result of weather conditions, the deceased had been assigned to clean various switches which had been covered by snow, and he was engaged in the act of cleaning a switch that led off the side track into a spur track at the time he met his death. The defendant had engaged in a shifting operation some 2500 feet west of where the accident occurred. There were six loaded cars that were to be attached to a number of cars that were located approximately 100 feet east of the place where the deceased was engaged in the cleaning of a switch. The cars were being pushed by an engine and detached therefrom and permitted to proceed on their own momentum for a distance of 2500 feet at a speed of ten to fifteen miles an hour. Switching operations were not continuous during any one day. The physical structure of the railroad at the place of the accident was such that it could not be considered in the same category as a 'yard' is commonly understood in railroad parlance. During the period that the cars were traveling the 2500 feet on the side track, two freight trains passed on the main track in a westerly direction. The cars were traveling in an easterly direction. The deceased was struck by the cars as they passed the switch. His body was found ninety feet east of the switch after the two series of cars had been coupled.
(1) That the defendant's employees engaged in the operation of the switch-engine failed to determine whether the side track was clear before switching the six freight cars.
(2) That the crew of the switch-engine was negligent in attempting to switch said cars by means of letting them run free onto the said side track without any brakeman thereon to set the brakes and without having said cut of cars coupled to an engine and without having the air coupled in so far as to control the brakes.
(3) That the crew of said work train was negligent in failing to post a watchman or flagman on said side track while the said ...