GOODRICH, Circuit Judge.
John Henry Eckenrode, a railroad man for more than forty years, was killed in an accident on October 8, 1943. His widow, as administratrix, sued the railroad company under the Federal Employers’ Liability Act1 for the damages resulting from his death. There was also a claim based on the Safety Appliance Act, 45 U.S.C.A. § 1 et seq., which has disappeared in the jury’s verdict against the plaintiff on this point. The jury, however, after finding the decedent was guilty of contributory negligence, returned a verdict for $10,000 against the railroad and made two special findings2 which are consistent with this verdict. The Trial Judge subsequently set aside the verdict, basing his action on a carefully considered opinion 3 in which he reached the conclusion that there was no evidence on which the jury could find against the defendant. The plaintiff appeals.4
We agree with the Trial Judge. We are fully conscious of the weight to be attached to the jury’s finding, which weight becomes the greater, we believe, when it is backed up by specific findings upon interrogatories submitted by the Trial Judge which go to the very heart of the case. We recognize that the plaintiff is entitled to the most favorable interpretation of the facts in her favor and all the inferences which may reasonably be drawn from the facts established by the evidence as viewed [998]*998in the light most favorable to the plaintiff’s case. But with all of that in mind, we still conclude that there is no evidence on which a recovery based upon negligence on the part of the defendant can be sustained.
Case law does not help us much here.5 There is no dispute that the foundation of recovery under the Act is negligence on' the part of the defendant.6 There is no doubt of the duty of the defendant to exercise care toward employees in the operation of trains. The difficult part of the decision comes in applying non-disputed rules of law to the facts. We turn, therefore, to the facts concerning this accident.
The time is about noon on October 8, 1943. The scene is a portion of the tracks of the Pennsylvania Railroad in the coal country a few miles east of Cresson, Pennsylvania. An engine of the pusher type has pulled four loaded coal cars out on to the main track from a spur line known as Hastings Fuel. The four cars have been pushed up to where eighteen other loaded cars stand on the main track. Eckenrode, the decedent, effects the coupling and then goes back to the caboose, which is the right place for him to go, his duty for the present being completed with the coupling of the four cars to the train.
The next step in the operation is to push these twenty-two loaded cars up a grade to join with another engine and additional cars which are being assembled at a point called Red Top. At the front of our twenty-two car train stands McGowan, the brakeman. He gives the signals for stopping and starting. In the engine cab are Sunderlin, acting as engineer, and Ingoldsby, fireman. Sunderlin applies power. The train moves a little and then the wheels skid, revolve rapidly without producing the necessary traction. The engineer closes the throttle and tries again. This process is repeated a number of times, each attempt resulting in a short forward movement of the train. It is slow, of course. The speed is probably not more than a mile and one half an hour.
While this pushing, starting, and stopping business is going on, Eckenrode comes from the cabin and walks up past the cab of the engine. He suggests to the “big boy” at the throttle that if the latter cannot move the train he, Eckenrode, will get a bar and bar it up. This remark receives a derisive rejoinder from Sunderlin, who continues to open and close his throttle as before. Eckenrode continues forward 7 and is seen by all three of the train crew walking along the Hastings Fuel track. This will place him some twelve feet away from the side of the engine with the distance between him and the train increasing as Eckenrode continues to walk down the spur. It also places him below the level of the coal train since the spur is on a down-grade from the frog and the main line is on an up-grade from the frog. This is the last time that Sunderlin se.es Eckenrode until after the accident.
McGowan, the front brakeman, at his post twenty-two cars ahead of the engine, however, sees Eckenrode walking down the Hastings Fuel spur and then diagonalizing up the bank toward the train. He observes Eckenrode, as he walks up the émbankment, stoop down and evidently pick up something. Later McGowan discovers marks which look to him like finger marks where Eckenrode stooped. In a time less than it takes to relate the matter by the printed [999]*999page, there has been an accident. Somehow or other Eckenrode’s head has been struck between the lap and lead lever and the cylinder head of the engine. These lap and lead levers shoot back and forth very rapidly when the wheels are skidding instead of revolving in normal fashion. Eckenrode is unconscious. He is given such aid as the men can give and removed on a stretcher, but dies a few minutes later.
The above story is the sum total of the facts relative to the inquiry here. The facts came from the train crew and the Trial Judge permitted them to be examined as hostile witnesses.8
Out of this we cannot see a scintilla of evidence on which negligence can be found. For a man to be charged with negligence in failing to take precautions there must be some danger toward which these precautions should be directed.9 Now what was the danger here? From a position of safety in the caboose, back of the engine, comes Eckenrode. He has no duties with regard to the movement of the train at this point. He walks past the cab and he and the engineer exchange talk. Then he starts off along the spur which will take him further away from the train every step. What is there to watch out for? Eckenrode knows the train crew’s problem as well as any of the rest of these men. The evidence showed that he had not only been a railroad man for more than forty years, but he worked this very run and had done this very job for several years preceding the accident. We think that there was nothing in his conduct to give notice to the engineer of any possible danger involved in the situation. We see no reason why Sunderlin should have kept watch for Eckenrode, who knew as much about what had happened and what they were trying to make happen as the engineer, himself, did. But, further, even if Sunderlin had operated his throttle by touch and kept his eyes on Eckenrode all of the time, still the latter’s conduct gave no indication of danger.10 Going down Hastings Fuel [1000]*1000spur was certainly not conduct against which. Eckenrode should have been protected, nor was his climbing up the bank so as to get nearer his train. After all, he had to rejoin that train.
The point we are making does not involve assumption of risk. That is out of this law. Nor does it involve contributory negligence. The jury has found that Eckenrode was contributorily negligent. We are not at all sure that that finding could be sustained for it is just as speculative as is a negligence charge against the company. What we are talking goes to the very foundation of liability.
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GOODRICH, Circuit Judge.
John Henry Eckenrode, a railroad man for more than forty years, was killed in an accident on October 8, 1943. His widow, as administratrix, sued the railroad company under the Federal Employers’ Liability Act1 for the damages resulting from his death. There was also a claim based on the Safety Appliance Act, 45 U.S.C.A. § 1 et seq., which has disappeared in the jury’s verdict against the plaintiff on this point. The jury, however, after finding the decedent was guilty of contributory negligence, returned a verdict for $10,000 against the railroad and made two special findings2 which are consistent with this verdict. The Trial Judge subsequently set aside the verdict, basing his action on a carefully considered opinion 3 in which he reached the conclusion that there was no evidence on which the jury could find against the defendant. The plaintiff appeals.4
We agree with the Trial Judge. We are fully conscious of the weight to be attached to the jury’s finding, which weight becomes the greater, we believe, when it is backed up by specific findings upon interrogatories submitted by the Trial Judge which go to the very heart of the case. We recognize that the plaintiff is entitled to the most favorable interpretation of the facts in her favor and all the inferences which may reasonably be drawn from the facts established by the evidence as viewed [998]*998in the light most favorable to the plaintiff’s case. But with all of that in mind, we still conclude that there is no evidence on which a recovery based upon negligence on the part of the defendant can be sustained.
Case law does not help us much here.5 There is no dispute that the foundation of recovery under the Act is negligence on' the part of the defendant.6 There is no doubt of the duty of the defendant to exercise care toward employees in the operation of trains. The difficult part of the decision comes in applying non-disputed rules of law to the facts. We turn, therefore, to the facts concerning this accident.
The time is about noon on October 8, 1943. The scene is a portion of the tracks of the Pennsylvania Railroad in the coal country a few miles east of Cresson, Pennsylvania. An engine of the pusher type has pulled four loaded coal cars out on to the main track from a spur line known as Hastings Fuel. The four cars have been pushed up to where eighteen other loaded cars stand on the main track. Eckenrode, the decedent, effects the coupling and then goes back to the caboose, which is the right place for him to go, his duty for the present being completed with the coupling of the four cars to the train.
The next step in the operation is to push these twenty-two loaded cars up a grade to join with another engine and additional cars which are being assembled at a point called Red Top. At the front of our twenty-two car train stands McGowan, the brakeman. He gives the signals for stopping and starting. In the engine cab are Sunderlin, acting as engineer, and Ingoldsby, fireman. Sunderlin applies power. The train moves a little and then the wheels skid, revolve rapidly without producing the necessary traction. The engineer closes the throttle and tries again. This process is repeated a number of times, each attempt resulting in a short forward movement of the train. It is slow, of course. The speed is probably not more than a mile and one half an hour.
While this pushing, starting, and stopping business is going on, Eckenrode comes from the cabin and walks up past the cab of the engine. He suggests to the “big boy” at the throttle that if the latter cannot move the train he, Eckenrode, will get a bar and bar it up. This remark receives a derisive rejoinder from Sunderlin, who continues to open and close his throttle as before. Eckenrode continues forward 7 and is seen by all three of the train crew walking along the Hastings Fuel track. This will place him some twelve feet away from the side of the engine with the distance between him and the train increasing as Eckenrode continues to walk down the spur. It also places him below the level of the coal train since the spur is on a down-grade from the frog and the main line is on an up-grade from the frog. This is the last time that Sunderlin se.es Eckenrode until after the accident.
McGowan, the front brakeman, at his post twenty-two cars ahead of the engine, however, sees Eckenrode walking down the Hastings Fuel spur and then diagonalizing up the bank toward the train. He observes Eckenrode, as he walks up the émbankment, stoop down and evidently pick up something. Later McGowan discovers marks which look to him like finger marks where Eckenrode stooped. In a time less than it takes to relate the matter by the printed [999]*999page, there has been an accident. Somehow or other Eckenrode’s head has been struck between the lap and lead lever and the cylinder head of the engine. These lap and lead levers shoot back and forth very rapidly when the wheels are skidding instead of revolving in normal fashion. Eckenrode is unconscious. He is given such aid as the men can give and removed on a stretcher, but dies a few minutes later.
The above story is the sum total of the facts relative to the inquiry here. The facts came from the train crew and the Trial Judge permitted them to be examined as hostile witnesses.8
Out of this we cannot see a scintilla of evidence on which negligence can be found. For a man to be charged with negligence in failing to take precautions there must be some danger toward which these precautions should be directed.9 Now what was the danger here? From a position of safety in the caboose, back of the engine, comes Eckenrode. He has no duties with regard to the movement of the train at this point. He walks past the cab and he and the engineer exchange talk. Then he starts off along the spur which will take him further away from the train every step. What is there to watch out for? Eckenrode knows the train crew’s problem as well as any of the rest of these men. The evidence showed that he had not only been a railroad man for more than forty years, but he worked this very run and had done this very job for several years preceding the accident. We think that there was nothing in his conduct to give notice to the engineer of any possible danger involved in the situation. We see no reason why Sunderlin should have kept watch for Eckenrode, who knew as much about what had happened and what they were trying to make happen as the engineer, himself, did. But, further, even if Sunderlin had operated his throttle by touch and kept his eyes on Eckenrode all of the time, still the latter’s conduct gave no indication of danger.10 Going down Hastings Fuel [1000]*1000spur was certainly not conduct against which. Eckenrode should have been protected, nor was his climbing up the bank so as to get nearer his train. After all, he had to rejoin that train.
The point we are making does not involve assumption of risk. That is out of this law. Nor does it involve contributory negligence. The jury has found that Eckenrode was contributorily negligent. We are not at all sure that that finding could be sustained for it is just as speculative as is a negligence charge against the company. What we are talking goes to the very foundation of liability. It has to do with the duty of Sunderlin, in charge of the operation of the engine, to take precautions against an experienced fellow member of his ’ train crew acting in a wholly unexpectable and unreasonable fashion. We see nothing on which any charge against the company based upon carelessness of the locomotive’s crew could possibly be sustained.
The brakeman, McGowan, saw Eckenrode stoop and apparently pick up something. Assuming that what he picked up was sand and McGowan should have recognized it, that would still leave no basis for finding negligence. For even assuming that McGowan should have realized that Eckenrode picked up sand, there was no reason for charging him with negligence In his failing to anticipate that Eckenrode would come up close to the engine and do anything relative to the movement of the train with two handfuls of sand. We do not, in fact, know what Eckenrode was doing with the sand, assuming that he had any. Even if it may be inferred that he was trying to sand the tracks with it, it is too much to say that McGowan or other members of the train crew are to be charged with negligence in failing to anticipate this completely unexpectable operation on Eckenrode’s part.
Any Federal Judge who sees these railroad accident cases come in and go out of the courts must be troubled by the unsatisfactory social results obtained. Some claimants go out with very large verdicts. Others go out with nothing. Yet in each case the injury has come as part of the business of train movement and the disastrous consequences upon the victim or his family are equally heavy. But so long as the law is that the defendant must be negligent for the plaintiff to recover for his injuries it is our responsibility to apply the negligence test honestly and not to pretend that there is negligence when it does not exist. It does not exist in this case.
The judgment of the District Court will be affirmed.