Although the defendant offered no evidence, in our opinion the testimony offered by the plaintiff and his witness to prove negligence on the part of the Railroad's employees required instructions on negligence and contributory negligence under the Federal Employers Liability Act, 45 U.S.C.A. §§ 51, 53, in addition to instructions on the alleged violation under the Safety Appliance Act.
The evidence established that there were three railroad cars standing on a sidetrack called the milk track; a caboose on which the plaintiff, a flagman, was riding collided with these cars resulting in his injuries. The negligence alleged to have caused the collision was that as part of an extensive switching operation, the engineer, upon receiving a sign from the plaintiff (R. 11), 'kicked' the caboose into the milk track at a speed of 6 to 7 miles per hour, which allegedly was too fast, and that the engine should have pushed the caboose into the milk track instead of 'kicking' it. After the caboose was 'kicked' by the engine, it was plaintiff's duty to apply the hand brake and stop it, but the caboose failed to stop before colliding with the standing cars.
Although it was night, the jury could have inferred from prior movements in the shifting operation that plaintiff was aware of the standing cars on the milk track. The brakeman on the train testified that at the time of the accident, he saw these cars from a distance of 250 to 300 feet (R. 120, 128). Plaintiff did not testify that he was unaware of the standing cars, although he said he could not see the track ahead of him while operating the brake. Plaintiff did testify that the brake operated efficiently before and after the collision (R. 62-63, 69). There was no evidence of any particular defect in the brake mechanism.
If the brake was efficient, the conduct of the Railroad's employees, as well as plaintiff's own conduct in signalling for the 'kick' and operating the brake, were proper considerations for the jury in determining whether or not the Railroad's employees were negligent and the plaintiff was contributorily negligent. The defendant had a strong argument that the brake was operating efficiently at the time of the accident. If the jury accepted this contention, as well it might, whether or not plaintiff in the exercise of due care for his own safety was alert and timely and properly applied the brake were circumstances for the jury to consider in passing upon the issue of contributory negligence.
An appropriate order will be entered.