TOLEDO, ST. L. & W. R. CO. v. GORDON, 177 F. 152

ANDERSON, District Judge. Defendant in error’s decedent, Edwin J. Hair, was a brakeman in the employ of plaintiff in error, and on the night of August 16, 1907, was engaged in the performance of his duties on one of the freight trains of plaintiff in error. The train was on its way west to East St. Eouis, 111. The train crew consisted of an engineer, a fireman, a conductor, a rear brakeman, and the decedent, who was the front brakeman. When the train was proceeding west of Bayle, in Illinois, it broke in two at a point 7 or 8 cars from the engine and about 45 cars from the rear end of the train.

The coupling was of the automatic variety, but was defective, in that it would not hold under the strain of pulling the train. It would apparently couple all right when the cars were brought together, but would not hold. When the train first broke in two at a point west of Bayle the conductor and both brakemeu were at the place; where it broke, and the three were there when it was recoupled. After the train was thus coupled up, having lost teto much time to allow of it reaching the next station in time to permit it to pass a train coming east, the train crew proceeded to back their train into the switch at Bayle.

The conductor went back to the rear of the train to open the switch, the rear brakeman also went to the rear, and the decedent remained at the forward part of the train. While matters stood thus, the coupling again failed to hold, and the decedent went to the point where the train came apart and gave the engineer several signals to slack ahead and slack hack, supposedly in an attempt to effect a coupling that would hold. At length the decedent appeared as if coming out from between the cars and gave the engineer a quick signal to come back. The cars were then 38 inches or 2 feet apart.

The engineer pulled tlie throttle and brought the engine back. After the train came together, the engineer, receiving no further signals, and not being able to see decedent’s lantern, went back to where decedent was and found him standing between the drawbars, “one in front of him and one in the back,” as described in the evidence. He was caught in the lower part of the abdomen. Tlie engineer then went to his engine, pulled the cars apart, and decedent fell to the ground and in a few minutes died. The foregoing are the undisputed facts as shown by the evidence.

The only witnesses to the circumstances of the accident were the members of the train crew, and there is no contradiction between any of them upon any point. At the close of all the evidence plaintiff in error moved the court for an instruction to the jury to find the defendant not guilty.

This motion was overruled, and an exception reserved, and this ruling is assigned as error. • As appears from the above statement of facts, after signaling the engineer to slack forward and backward several times in an attempt to effect a coupling, the decedent, while the drawbars were 18 inches or 2 feet apart, gave a quick signal to back, which the engineer instantly obeyed, but not before decedent had placed himself between the draw-bars. We can conceive of but three possible explanations for decedent’s conduct: First, he may have deliberately placed himself in the position in which he was killed.

This would be suicide and is not to be presumed. The presumptions are against it. Second, he may have attempted to pass to the other side of the drawbars after giving the signal to back, and thus got caught. The closeness of the draw-bars together when the signal was given and his position when found might indicate an effort to pass through sidewise. Or, third, he may have given the wrong signal; that is, he may have intended to give the signal to pull forward, may have thought he had done so, and then gone in to examine the coupling further.

If the accident happened in any one of these ways, there can be no recovery. Indeed, upon any possible view of the case made by the evidence the decedent was guilty of negligence which contributed to his own injury and death. One count of the declaration averred that the car was being used in interstate commerce and was not equipped with couplers as required by the safety appliance act. But, whether the case be considered from the view point of the act of Congress (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]) or the local law, contributory negligence is a complete defense.

Denver & Rio Grande Railroad Co. v. Arrighi, 129 Fed. 347, 63 C. C. A. 649. Plaintiff in error’s motion for a directed verdict should have been sustained. The judgment of the circuit couirt is reversed, and the cause remanded for a new trial.