contributed in whole or in part to the accident.
A violation of company rules relative to safety for the conduct of its employees, general in terms, will not ordinarily constitute negligence as a matter of law, nor will observance of such rules as a matter of law necessarily be due care. It is for the jury's determination as to whether or not the violation or obeying of the rules along with the evidence as a whole constitutes negligence or lack of negligence. Atchison, T. & S.F. Ry. Co. v. Ballard, 5 Cir., 108 F.2d 768, certiorari denied 310 U.S. 646, 60 S. Ct. 1096, 84 L. Ed. 1413.
At first impression the case of Toledo, St. Louis & Western R. Co. v. Allen, 276 U.S. 165, 48 S. Ct. 215, 72 L. Ed. 513, seems to support the argument of the defendant that the motion for judgment notwithstanding the verdict should be granted. In that case the plaintiff worked in a switching yard and was struck by a car that was proceeding on its own momentum. At the place where the employee was working there was sufficient room to enable him to keep out of the way of moving cars. The accident occurred at night, the cars were being moved at four to six miles an hour, they were unlighted, unattended and no one warned the employee of their approach. He knew that switching was being done and there was nothing to show that the ordinary practice was departed from. The court held that the employee assumed the ordinary risks of his employment when obvious or fully known and appreciated. Since there was nothing to show that the plaintiff was in any danger other than such as was usually incident to his employment or that any member of the crew knew or had any reason to believe that he was oblivious of that danger, the defendant was not required to vary the switching practice customarily followed in that yard or to warn or to take other steps to protect it.
I believe this case can be distinguished from the facts which are involved in the instant action.
Although it is true that the deceased had been employed by the defendant for a number of years and was well aware of the shifting operation which occurred daily in the vicinity where he worked, the duties of the deceased were such that he followed his employment in many parts of the yard of the defendant company and he did not work on any particular switch at any definite hour or time of the day. The defendant knew or should have known that the two freight trains, which proceeded on the opposite track, would pass on the adjoining track to the shifting operation. The noise of the passing freight trains would unquestionably have interfered with the ability of the deceased to hear the approaching cars. It appears to me that under all these facts a question existed for the jury to determine whether or not the switching practice which was customarily followed in this particular area should have been varied or changed, and if the defendant should have provided some warning or notice to be given the deceased of the approach of the six cars.
The rule of law is sound which requires an employee working in and about a railroad yard to look out for his own safety. No duty is imposed as a matter of law on employees engaged in a switching operation to keep a lookout for an employee working in a busy terminal yard. Davidson et al. v. Gardner, 7 Cir., 172 F.2d 188; Sumney v. Southern Ry. Co. et al., 4 Cir., 89 F.2d 437; Trust Co. of Chicago v. Erie R. Co., 7 Cir., 165 F.2d 806, certiorari denied, 334 U.S. 845, 68 S. Ct. 1513, 92 L. Ed. 1769; Aerkfetz v. Humphreys, 145 U.S. 418, 12 S. Ct. 835, 36 L. Ed. 758.
Since the 1939 amendment to the Federal Employers' Liability Act, assumption of risk is no longer a defense and whether or not an employee's negligence contributes to his own injury or death is a question for the determination of the jury. If such negligence exists, the damages to be allowed should be proportioned between the employee and his employer according to their respective fractions of total negligence. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63, 63 S. Ct. 444, 87 L. Ed. 610, 143 A.L.R. 967; Keith v. Wheeling & L.E. Ry. Co., 6 Cir., 160 F.2d 654; Chicago, St. P., M. & O.R. Co. v. Arnold, 8 Cir., 160 F.2d 1002.
The field of jury's inferences with respect to negligence and proximate cause under the Federal Employers' Liability Act is a broad one and only requires a rational possibility on the facts, and a verdict is not necessarily one of speculation and conjecture because inferences are arrived at by application of general experience and common reaction to evidentiary situations. Henwood v. Coburn, 8 Cir., 165 F.2d 418.
Although a railroad has no duty under the Federal Employers' Liability Act to keep a look-out or give signals to employees in railroad yards, in view of the passing of the two freight trains at the point where the deceased was working during the shifting operation if the railroad had maintained a look-out and had been in a position to give a signal or warning of the approach of the six cars, the accident would not have occurred.
The choice of conflicting versions of the way the accident happened, the decision as to which witness was telling the truth, the inferences to be drawn from uncontroverted as well as controverted facts, are questions for the jury. If there is a reasonable basis in the record for concluding that there was negligence of the employer which caused the injury, it would be an invasion of the jury's function for the trial judge to draw contrary inferences or to conclude that a different conclusion would have been more reasonable. Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S. Ct. 598, 91 L. Ed. 572.
The question of the defendant's negligence and the deceased's contributory negligence was therefore necessarily for the jury, and it appears to me proper that the motion for a directed verdict and for judgment n.o.v. should be denied.
An appropriate Order is filed.