MACK, Circuit Judge.
Smith was the rear brakeman on a long train of ninety-eight empty coal cars which was proceeding east on defendant’s lines between Russell, Ky., and Danville, W. Va. He was riding in the caboose with the conductor. The train crew had orders to reduce the train to twenty-five ears at Sproul Yards, at which place there were two switches, known as No. 3 and No. 4 switches. The train was to enter No. 3 switch. The head brakeman by error threw No. 4 switch, and the train, travelling about seven or eight miles an hour, proceeded on No. 4 switch eight or ten ear lengths before coming to a sudden and violent stop as the result of the application of the air brakes from some unknown cause. The head brakeman, Ruggles, called by plaintiff, testified that, when he was standing at the main line switch about ten cars back of the engine, the air suddenly “went on,” the cars stopped, and the force of the stopping was so great that it broke a cross-over pipe on the train air line on the twentieth car from the caboose. He found a car off center three ears from the caboose, and the front panel of the caboose door broken out. The furniture in the interior of the caboose, as well as the stove, had been torn loose, and the door panel splintered. Ruggles did not know where the air that he “heard go on came from,” that is, whether the brakes had been applied by the engineer or as a result of the break in the air line. The crash of the cars was so violent that it threw both Smith and the conductor through the panel of the front door of the caboose so that their heads were hanging out on the front platform. Smith sustained severe injuries which left him permanently crippled and unable to continue working as a railroad brakeman.
He brought suit under the Federal Employers’ Liability Act (45 USCA §§ 51-59) and the Safety Appliance Act (45 USCA § 1 et seq.). No witnesses were called by defendant, and no evidence was offered by it as to what caused the brakes to go on. At the close of plaintiff’s ease, defendant’s motion for a directed verdiet was denied; the jury returned a verdiet for plaintiff in the sum of $10,000; and, after a denial of defendant’s motion for a new trial, judgment was entered thereon. A number of errors have been assigned on this appeal, but, with [113]*113two exceptions, hereinafter considered, they all concern the question whether or not there was sufficient evidence of negligence to permit the submission of the case to the jury.
1. It is clear from the evidence of plaintiff’s two witnesses that the sudden application of the air brakes was caused either by their being set by the engineer or by the breaking of the train line at-the twentieth car from the caboose. If either or both of these applications might as reasonably and probably have resulted from any one of several causes, for some of which the company would be liable and for some of which it would not, then it was error to leave the case to the jury. Patton v. Texas & Pacific R. R. Co., 179 U. S. 658, 663, 21 S. Ct. 275, 45 L. Ed. 361; New York Central R. R. v. Ambrose, 280 U. S. 486, 490, 50 S. Ct. 198, 74 L. Ed. 562; Burnett v. Penn. R. R. Co., 33 F.(2d) 579 (C. C. A. 6th). The jury cannot be permitted to speculate, and on speculation alone to find that the negligence of the company was the actual cause. Atchison, Topeka & S. F. R. R. v. Toops, 50 S. Ct. 281, 74 L. Ed. 896, decided April 14, 1930. Defendant contends that on the record before us it is impossible to discover whether or not the engineer applied the air and brought the train to its sudden stop; that, if it be assumed that he did, then it must also be presumed that he acted with due care; and that if, on the other hand, the break in the train line caused the brakes to be applied, there is no showing that the company failed to inspect the train line or that it was in any way defective; and that such brakes might have been set by the freezing, clogging, or leaking of the air line en route. We cannot accept this contention.
2. If the breaking of the air line preceded the sudden setting of the brakes and caused it, then it was clearly proper for the jury, in the absence of other evidence, to infer from this alone that the injury resulted from the company’s failure to comply with the absolute duty imposed upon it by the Safety Appliance Acts. Spokane & Inland Empire R. R. Co. v. Campbell, 241 U. S. 497, 36 S. Ct. 683, 60 L. Ed. 1125; Minneapolis & St. Louis R. R. Co. v. Gotschall, 244 U. S. 66, 37 S. Ct. 598, 61 L. Ed. 995; Didinger v. Pennsylvania R. R. Co. (C. C. A. 6th) 39 F.(2d) 798, decided April 7, 1930; Altman v. Atlantic Coast Line R. R. Co., 18 F.(2d) 405 (C. C. A. 5th). And, even though-plaintiff, at the time of the accident, was not engaged in an operation in which the safety appliances are specially designed to furnish protection, the failure to comply with the acts may nevertheless be the proximate cause of the injury. Louisville & Nashville R. R. v. Layton, 243 U. S. 617, 37 S. Ct. 456, 61 L. Ed. 931; Davis v. Wolfe, 263 U. S. 239, 44 S. Ct. 64, 68 L. Ed. 284. This issue was submitted to the jury under a proper charge.
3. If, on the other hand, the brakes were set by the engineer, or some other member of the train crew, the court, on the evidence adduced, rightly submitted to the jury the question whether or not defendant’s servants were negligent. We are satisfied that, on the showing made, the doctrine of res ipsa loquitur was applicable. The general principles underlying that doctrine have previously been analyzed and developed by this court in Cincinnati, N. O. & T. P. Ry. v. South Fork Coal Co., 139 F. 528, 1 L. R. A. (N. S.) 533; Lee Line Steamers v. Robinson, 218 F. 559, L. R. A. 1916C, 358; Pennsylvania Co. v. Clark, 266 F. 182, 184. Its application to master and servant cases was discussed in the South Fork Coal Co. Case, supra, at page 536, and has recently been treated in an exhaustive opinion by Judge Westenhaver in Cochran v. Pittsburgh & L. E. R. R. Co. (D. C.) 31 F.(2d) 769, in which he considered the effect of the Federal Employers’ Liability Act and the Safety Appliance Act. The conclusion reached by Judge Westenhaver, with which we axe in full accord, is that in eases governed by these acts the doctrine of res ipsa loquitur is applicable; that is, “an inference of negligence will arise from the accident whenever it is alleged or proved that the employee was injured in the course of his employment; that the ñatee of the accident is such as to make it probable that it was the result of negligence, rather than a pure accident or the act of God; that the agency causing the accident was not under the control of the injured employee, but of the master or other employee, for whose, negligence the master is now responsible; that the circumstances render it improbable that there was any other cause than negligence in some form for which the master would be liable; and that it was the kind of accident such as does not ordinarily happen if due care is exercised.” 31 F.(2d) 773.
The effect of the doctrine is merely to shift the burden of going forward with the evidence; the ultimate burden of proof remains on plaintiff.
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MACK, Circuit Judge.
Smith was the rear brakeman on a long train of ninety-eight empty coal cars which was proceeding east on defendant’s lines between Russell, Ky., and Danville, W. Va. He was riding in the caboose with the conductor. The train crew had orders to reduce the train to twenty-five ears at Sproul Yards, at which place there were two switches, known as No. 3 and No. 4 switches. The train was to enter No. 3 switch. The head brakeman by error threw No. 4 switch, and the train, travelling about seven or eight miles an hour, proceeded on No. 4 switch eight or ten ear lengths before coming to a sudden and violent stop as the result of the application of the air brakes from some unknown cause. The head brakeman, Ruggles, called by plaintiff, testified that, when he was standing at the main line switch about ten cars back of the engine, the air suddenly “went on,” the cars stopped, and the force of the stopping was so great that it broke a cross-over pipe on the train air line on the twentieth car from the caboose. He found a car off center three ears from the caboose, and the front panel of the caboose door broken out. The furniture in the interior of the caboose, as well as the stove, had been torn loose, and the door panel splintered. Ruggles did not know where the air that he “heard go on came from,” that is, whether the brakes had been applied by the engineer or as a result of the break in the air line. The crash of the cars was so violent that it threw both Smith and the conductor through the panel of the front door of the caboose so that their heads were hanging out on the front platform. Smith sustained severe injuries which left him permanently crippled and unable to continue working as a railroad brakeman.
He brought suit under the Federal Employers’ Liability Act (45 USCA §§ 51-59) and the Safety Appliance Act (45 USCA § 1 et seq.). No witnesses were called by defendant, and no evidence was offered by it as to what caused the brakes to go on. At the close of plaintiff’s ease, defendant’s motion for a directed verdiet was denied; the jury returned a verdiet for plaintiff in the sum of $10,000; and, after a denial of defendant’s motion for a new trial, judgment was entered thereon. A number of errors have been assigned on this appeal, but, with [113]*113two exceptions, hereinafter considered, they all concern the question whether or not there was sufficient evidence of negligence to permit the submission of the case to the jury.
1. It is clear from the evidence of plaintiff’s two witnesses that the sudden application of the air brakes was caused either by their being set by the engineer or by the breaking of the train line at-the twentieth car from the caboose. If either or both of these applications might as reasonably and probably have resulted from any one of several causes, for some of which the company would be liable and for some of which it would not, then it was error to leave the case to the jury. Patton v. Texas & Pacific R. R. Co., 179 U. S. 658, 663, 21 S. Ct. 275, 45 L. Ed. 361; New York Central R. R. v. Ambrose, 280 U. S. 486, 490, 50 S. Ct. 198, 74 L. Ed. 562; Burnett v. Penn. R. R. Co., 33 F.(2d) 579 (C. C. A. 6th). The jury cannot be permitted to speculate, and on speculation alone to find that the negligence of the company was the actual cause. Atchison, Topeka & S. F. R. R. v. Toops, 50 S. Ct. 281, 74 L. Ed. 896, decided April 14, 1930. Defendant contends that on the record before us it is impossible to discover whether or not the engineer applied the air and brought the train to its sudden stop; that, if it be assumed that he did, then it must also be presumed that he acted with due care; and that if, on the other hand, the break in the train line caused the brakes to be applied, there is no showing that the company failed to inspect the train line or that it was in any way defective; and that such brakes might have been set by the freezing, clogging, or leaking of the air line en route. We cannot accept this contention.
2. If the breaking of the air line preceded the sudden setting of the brakes and caused it, then it was clearly proper for the jury, in the absence of other evidence, to infer from this alone that the injury resulted from the company’s failure to comply with the absolute duty imposed upon it by the Safety Appliance Acts. Spokane & Inland Empire R. R. Co. v. Campbell, 241 U. S. 497, 36 S. Ct. 683, 60 L. Ed. 1125; Minneapolis & St. Louis R. R. Co. v. Gotschall, 244 U. S. 66, 37 S. Ct. 598, 61 L. Ed. 995; Didinger v. Pennsylvania R. R. Co. (C. C. A. 6th) 39 F.(2d) 798, decided April 7, 1930; Altman v. Atlantic Coast Line R. R. Co., 18 F.(2d) 405 (C. C. A. 5th). And, even though-plaintiff, at the time of the accident, was not engaged in an operation in which the safety appliances are specially designed to furnish protection, the failure to comply with the acts may nevertheless be the proximate cause of the injury. Louisville & Nashville R. R. v. Layton, 243 U. S. 617, 37 S. Ct. 456, 61 L. Ed. 931; Davis v. Wolfe, 263 U. S. 239, 44 S. Ct. 64, 68 L. Ed. 284. This issue was submitted to the jury under a proper charge.
3. If, on the other hand, the brakes were set by the engineer, or some other member of the train crew, the court, on the evidence adduced, rightly submitted to the jury the question whether or not defendant’s servants were negligent. We are satisfied that, on the showing made, the doctrine of res ipsa loquitur was applicable. The general principles underlying that doctrine have previously been analyzed and developed by this court in Cincinnati, N. O. & T. P. Ry. v. South Fork Coal Co., 139 F. 528, 1 L. R. A. (N. S.) 533; Lee Line Steamers v. Robinson, 218 F. 559, L. R. A. 1916C, 358; Pennsylvania Co. v. Clark, 266 F. 182, 184. Its application to master and servant cases was discussed in the South Fork Coal Co. Case, supra, at page 536, and has recently been treated in an exhaustive opinion by Judge Westenhaver in Cochran v. Pittsburgh & L. E. R. R. Co. (D. C.) 31 F.(2d) 769, in which he considered the effect of the Federal Employers’ Liability Act and the Safety Appliance Act. The conclusion reached by Judge Westenhaver, with which we axe in full accord, is that in eases governed by these acts the doctrine of res ipsa loquitur is applicable; that is, “an inference of negligence will arise from the accident whenever it is alleged or proved that the employee was injured in the course of his employment; that the ñatee of the accident is such as to make it probable that it was the result of negligence, rather than a pure accident or the act of God; that the agency causing the accident was not under the control of the injured employee, but of the master or other employee, for whose, negligence the master is now responsible; that the circumstances render it improbable that there was any other cause than negligence in some form for which the master would be liable; and that it was the kind of accident such as does not ordinarily happen if due care is exercised.” 31 F.(2d) 773.
The effect of the doctrine is merely to shift the burden of going forward with the evidence; the ultimate burden of proof remains on plaintiff. Sweeney v. Erving, 228 U. S. 233, 33 S. Ct. 416, 57 L. Ed. 815, Ann. Cas. 1914D, 905; see 5 Wigmore, Evidence, §§ 2483-2498, 2509. If the defendant choos[114]*114es not to go forward, the evidential inference or presumption of negligence suffices to require the submission of the Case to the jury. Cf. Southern Ry. v. Bennett, 233 U. S. 80, 34 S. Ct. 566, 58 L. Ed. 860; Minneapolis & St. Louis R. R. v. Gotschall, supra.
4. In the case at bar, plaintiff’s uncontradieted evidence showed that the train was sent down the wrong track through Ruggles’ negligence; that, after it had proceeded but eight ear lengths, the brakes went on suddenly enough to cause the damages to the train and the injuries to the conductor and plaintiff. Smith, himself a brakeman of ten years’ experience, testified that a break in the train line only twenty cars from the caboose would make a “reasonable stop on the rear end,” and that “an emergency application” of the brakes by the engineer was the only thing that could have caused the severe jolt. Assuming that the train line was broken after and not before the setting of the brakes, it may well he that some sudden emergency confronted the engineer and justified his applying them as fully and as suddenly as he did. .But, in view of the Iprakeman’s initial mistake, the violence of the stopping, the fact that the accident occurred in broad daylight, and the complete absence of any evidence of such a sudden emergency, there seems to he no outstanding probable cause of the accident other than defendant’s negligence. On this assumption that the break was caused by the sudden application of the brakes by the engineer, plaintiff’s evidence, in our judgment, sufficed to make applicable the rule of resipsa loquitur as developed in the cited eases. Thereafter it was incumbent upon the de-' fendant to go forward with evidence tending to show a justification for the suddenness of his brake application. On its failure to do-so, the issue was properly submitted to the jury-
5. The remaining assignments of error may he disposed of briefly. Defendant objected to plaintiff’s asking one of his doctors whether it was possible to have any impairment of hearing as a result of injury to the nervous system; the objection was overruled, and the witness was permitted to answer. Even though the objection stated no reason, and might therefore have been disregarded, we fail to see any prejudicial error, since there was no proof offered as to plaintiff’s hearing, and the court carefully reviewed the proofs of injury, and charged that the jury should base any verdict solely on such proof. The second objection was to a question concerning the injuries sustained by the conductor. Since the court admitted the evidence solely for the purpose of showing the degree of violence of the impact on the caboose, its admission was proper.
Judgment affirmed.