
    STANFORD v. PENNSYLVANIA R. CO.
    No. 9681.
    United States Court of Appeals Seventh Circuit.
    Dec. 11, 1948.
    
      John J. Enright, of Chicago, 111., and Charles F. Scanlon and Ray J. McGowan, both of Akron, Ohio, for appellant.
    Theodore Schmidt, P. J. Cronin, Charles F. White, and Herbert C. De Young, all of Chicago, 111., for appellee..
    Before KERNER and SPARKS, Circuit Judges, and LINDLEY, District Judge.
   KERNER, Circuit Judge.

This was a suit in which plaintiff claimed damages under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., for the death of her husband, Dona-ld G. Stanford, while in defendant’s employ. The cause was tried to a jury. The jury found against defendant and returned a verdict for plaintiff .for $9,000. Defendant moved the court to set aside the verdict and enter judgment in accordance with its motion for a directed verdict in its favor. The trial judge set asi-de the verdict and entered judgment notwithstanding the verdict in favor of defendant.

The complaint was based upon the charge that defendant had negligently moved a locomotive at a time when plaintiff’s decedent was attempting to put water into the tender of the locomotive. It appeared that a water plug had been pinned again-st Stanford’s stomach, causing injuries from which he died. There was evidence that the fall spout of the water plug was bent and that the plug was closed by the impact, but there were no eye witnesses to show definitely the actual occurrence -at and just prior to the time that Stanford was crushed.

The trial judge was of the opinion that “The only reasonable explanation of the accident i-s that Stanford upon giving the •signal and before the engine stopped moving, stepped between the plug and the coal slope, placing himself in -a position of danger and that his death was not the result of any negligence on the part of the engineer.”

PlaintifF-s theory is that in order to crush Stanford the -train must have continued to move after th-e stop signal was given, because at the time t-h-e stop -signal was given Stanford had not been injured, but was standing in front and to the north of the water plug or spout. On the other hand, defendant contends that there is no evidence tending to -show that defendant was guilty of any negligence. Its theory is that Stanford, upon giving the signal and before the train stopped moving, stepped between t-h-e plug and the coal slope, grabbed t-he plug either before the train had entirely stopped or pulled it with -such force that the spout hit him.

Thus there is presented th-e question of whether -there was any -evidence to -support the jury’s finding that defendant negligently moved th-e engine at a time w-hen Stanford was attempting to pu-t water into the tender. If -there was any evidence which, together with a-11 the reasonable -inferences that might -be drawn the-refirom, supports plaintiff’s case, the trial judge erred in substituting his conclusions for those of t-he jury, -since the jury i-s -th-e tribunal to decide that type o.f -issue. Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 63 S.Ct. 1062, 87 L.Ed. 1444; Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; and Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615. Only a -complete absence of probative facts -to support the conclusions reached would justify a court -to substitute i-t-s -conclusions for those of the ju-ry. Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916. This is so because the choice of -conflicting versions of the way t-he accident happened, -the decision as to which witnes-s is telling the truth, and -the inferences to be drawn from uncontroverte-d -a-s well as c-on-t-roverted facts, are questions -for the jury. Once there is a reasonable basis for concluding that there Was negligence which caused the injury, it is irrelevant that -fair minded men might reach a different conclusion. Otherwise 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 be more reasonable. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 91 L.Ed. 572.

Stanford was -a locomotive fireman on board -the -engine -of an interstate passenger train consisting of an -engine, tender, -and -eight coaches. For -the purpose of taking -on water, th-e engine stopped at a water plug, consisting of -a standpipe, an ■extension pipe and fall pipe, in defendant’s East Con-way Yards, Pennsylvania. Defendant’s -tracks at this point run in a general -easterly and westerly -direction.c The water plug wa-s located to the south of -the tracks u-pon which this -engine was 'being operated, headed east. Stanford got down from th-e engine, unlatc-h-ed -the plug, turned it over to th-e tender, and then got up on. the tender. Located on -the tender, immediately to the rear -of th-e coal -loft or slope, was a brakeman’s -cabin about 4% feet in height. Stailfo-rd, for -the purpose of putting water into the manhole located on the extreme rear -end of -the -tender, swung the extension pipe of the plug from -the south to the north, but when the pipe would not -clear the cabin, he signaled the 'engineer, sitting sidewise -on a -seat on the south side of the cab of the engine with his back toward Stanford, to move the engine from 24 to 36 inches in order that -the plug might be in a position to spot the plug over the manhole. From certain photographs -showing the tender, the cabin and th-e water plug, if appears that the -only way the plug -cou-ld -clear the cabin would be to s-wing th-e plug -clear of the engine and move the engine forward.

The engineer testified that after receiving Stanford’s signal he moved the -engine back about two feet or perhaps -a little more than -that, and that when it was far enough he looked up and -saw Stanford ■standing in .front and to the north of the plug; that Stanford waved his arm to stop the engine, and hollered “That will do”; that thereupon he put on the air valve with the independent brake and stopped the engine; and that when he next -looked up -he -saw Stanford’s hands back -up over the coal slope; that he did no-t se-e Stanford change his position from -the time Stanford Called out “That will do” -and that he did not see Stanford when he was in the act of stopping the .train; that he immediately went up to see what the trouble was and found Stanford pinned between the coal slope and the plug. To this evidence must be added the presumption that Stanford was in the exercise of due care for his own safety at the time he was crushed. Tennant v. Peoria & P. U. Ry. Co., supra; and Chicago & N. W. Ry. Co. v. Grauel, 8 Cir., 160 F.2d 820, 821.

We think, after applying the principles enunciated in the cases cited above to the facts in our case, that there was evidence upon which the jury could have found negligence on the part of defendant which contributed, in whole or in pant, to Stanford’s death, and since there was an evidentiary basis .for the jury’s verdict, the jury was free to discard or disbelieve whatever facts were inconsistent with its conclusions, Lavender v. Kurn, supra, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916; and that .the court erred in substituting its conclusions .for those of the jury. Accordingly, the judgment of the District Court is reversed and the cause is remanded for further proceedings not inconsistent with this-opinion.

Reversed and remanded.  