NORTHERN PAC. R. CO. v. BEHLING, 57 F. 1037

CALDWELL, Circuit Judge. The defendant in error was a

section hand in the employ of the plaintiff in error, the crew consisting of four men and a foreman. On the 27th of September, 1889, while the crew, under1 the direction of the foreman, was operating a hand car on the track going to their place of work, a freight train was seen approaching from the rear, and rapidly gaining on the hand car. The attention of the foreman was called to this fact, and the suggestion made that the hand car be stopped and removed from the track, to which he replied: “Never mind.

You keep on pumping until I tell you to stop.” He delayed giving the order to stop until the train was dangerously near the hand car, when he ordered the men to stop pumping, applied the brakes, and said, “Now get her off the track as quick as the devil will let you.” When this order was given, the train was so close to the hand car that there was not time to remove the latter from the track in the accustomed orderly, deliberate, and safe manner, and in the extraordinary haste, exertion, and excitement incident to its removal from the track in time to prevent a collision one of the crew stumbled, and lost his hold upon the hand car, by which it was precipitated upon and injured the defendant in error.

No exceptions are taken to the charge of the court. It is assigned for error that the negligence complained of is. the negligence of a fellow servant; but, under the provisions of the Minnesota statute, that fact constitutes no defense. Gen. Laws 1887, c. 13; Slette v. Railway Co., (Minn.) 55 N. W. Rep. 137; Steffenson v. Railway Co., 45 Minn. 355, 47 N. W. Rep. 1068. The only other error relied upon in argument is that the court erred in refusing to give a peremptory instruction to the jury to find a verdict for the defendant.

Whether the facts proved constituted negligence, and, if so, whether the defendant in error was injured as a result of such negligence, were questions of fact for the jury to decide. The plaintiffs testimony tended to support his contention on both of these issues. As we said in the case of Railroad Co. v. Conger, 5 C. C. A. 410, 56 Fed. Rep. 20: “It was for the jury to say whether and how far the evidence was to be believed.

If by giving credit to the ijlaintiff’s evidence, and discrediting the counter evidence, the plaintiff's case was made out, the court should not have withdrawn the case from the jury.” The case of Coyne v. Railway Co., 133 U. S. 370, 10 Sup. Ct. Rep. 382, is relied.upon by the plaintiff in error, but is not in point. In that case the court say that “the injury to the plaintiff was not caused by any negligence on the part of McCormick,” the foreman.

In this case the jury found the foreman was guilty of negligence in not giving a timely order for the removal of the hand car from the track", and that the injury to the plaintiff resulted from that act of negligence.

In the Coyne Case the court said, Ml: does not appear that the approaching freight train was so near as to render it unsafe for McCormick to start the construction train,” and it was, therefore, held that an order to hasten the loading of the car was not a negligent act; hut in the case at bar the jury found that the foreman was guilty of negligence, not in giving, hut in delaying to give, the order for the removal of the hand car from the track until there was imminent danger that, it would he run into by the train before it could he removed.

The serious consequences of such a collision were barely averted hv unusual and extraordinary exertion on the part of the crew. 'The jury have found that this dangerous situation was brought, about by the negligence .of the foreman, and that as a result of such negligence the plaintiff sustained the injury complained of. The judgment of the court below is affirmed.