259 F. 476 | 3rd Cir. | 1919
The defendant in error recovered a j'udgment in the court below. against the plaintiff in error for damages resulting from personal injuries which he received while in the employ of the latter, as a brakeman, in its yards at Port Reading, N. J. The action was brought under the federal Employers’ Liability Act of 1908 and Supplements (Act April 22, 1908,^;. 149, 35 Stat. L. 65; Act April 5. 1910, c. 143, 36 Stat. L. 291 [Comp. Stat. 1916, §§ 8657-8665]), and was based upon the alleged negligence of the defendant (the plaintiff in error), in failing to provide a car, which the plaintiff claims he was required to uncouple in the performance of his duty as a
We now proceed to an examination of the assignments of error relied upon, in the light of these general observations. The defendant advances four reasons why the judgment below should be reversed. These will appear as they are hereafter discussed.
1. It is first urged that the plaintiff’s version as to how the accident happened (which must have been accepted by the jury, in order to entitle the plaintiff to recover), “is contradicted by physical facts,” and that the judgment should for that reason be reversed. At the outset of the discussion of this point, it should be noted that the trial court declined to set aside the verdict as contrary to the weight of evidence. In reality, therefore, the defendant is seeking to have the action of the trial judge in that respect reviewed. Without wishing to be understood as conceding or intimating that a federal court of appeal may, on writ of error, reverse a judgment because it is based upon a verdict contrary to the “physical facts” in the case, except it be possibly, on the theory that the refusal of a trial judge to set aside such a verdict amounts to a clear abuse of the discretion which the law vests in him (James v. Evans, 149 Fed. 136, 141, 80 C. C. A. 240 [C. C. A. 3d Cir.]), it is, vce think, sufficient for the purposes of this case merely to state that a careful reading of the record discloses that the so-called “physical facts,” which the defendant claims conclusively controvert the plaintiff’s version of the accident, were themselves controverted and depended for their establishment upon the acceptance by the jury of the testimony of some of the defendant’s witnesses who testified to them, and the rejection of the plaintiff’s testimony, either in respect to their existence or in explanation of the apparent inconsistency between some of them and the plaintiff’s version of how the accident happened.
2. It is next urged that there was not sufficient proof of a defective coupler on the car which plaintiff claims caused his injury to warrant the submission of the defendant’s negligence to the jury on the theory that it had violated the Safety Appliance Acts. It is true that the only evidence on that point was that given by the plaintiff himself to the effect that he tried three times to operate the lever which is designed to open the coupler and thereby uncouple the cars, and that it would not work. In connection with that evidence, however, it must be borne in mind that the plaintiff was an experienced railroad man, who had been working as a brakeman for about six years previous to the accident and was accustomed to operate couplers such as was installed on the car in question; that the car was being pushed; that, so far as the evidence discloses, it was not on a curved track; and that there was no evidence which would explain the apparent defective condition of the coupler, which it would be otherwise permissible to infer from the fact that it did not work. It is true that several witnesses for the defendant testified that the lever on a car which they tested immediately after the accident, and which car they claim caused plaintiff’s injury, did work properly, but they referred to a different car than that which the plaintiff referred to. Their version as to how and where the accident happened was radically different from the plaintiff’s version. If the jury believed the plaintiff’s testimony as to how and where he was injured (as the verdict establishes that they did), then they were justified in disregarding all of the testimony of the defendant’s witnesses which related to the coupler on the car in respect to which they testified. There was also evidence that the coupler on the car referred to by the plaintiff had been tested, as had all other cars in the yard, some time prior to the accident by a car inspector; but as to exactly when such inspection took place, the extent of it, etc., the evidence was uncertain.
Finding no error in the record, the judgment below is affirmed, with costs.