DENMAN, Chief Judge.
Fugazzi appeals from a judgment notwithstanding the verdict setting aside a judgment in his favor for $8,575.00 for personal injuries received while in the employ of the Southern Pacific as car repairman in the Company’s yard at Stockton, California. The court had denied the Southern Pacific’s motion for a directed verdict and the question here is, was the court right in denying that motion or right in granting the motion to set aside the judgment.
The complaint alleged that the Company’s employee had caused Fugazzi to work in a place known to the Employer to be unsafe and as a result of so working he was injured. It was brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, providing that the railway is liable to its employee for “injury * * * resulting in whole or in part from the negligence of any of the * * * employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars * * * appliances * * * or other equipment.” (Emphasis supplied.) The company is liable for its negligence regardless of the employee’s assumption of his risk in working in a negligently kept place of employment, 45 U.S.C.A. § 54, and his contributory negligence does no more than reduce his amount of damage, 45 U.S.C.A. § 53.
The parties are agreed that Fugazzi’s injuries occurred from causes arising at the place he was ordered to work. This was on a line of three boards running lengthwise on the middle of the top of a freight car whose roof sloped downward on each side of the boards. Each board was 5½ inches wide with 1½ inch distance between the outer boards and the inner boards, that is, the width of the three boards is 19½ inches. It is further agreed that the sloping roof surrounding this 1½ inches of working space was covered with slippery ice.
The undisputed evidence is that Fu-gazzi was ordered to work on the car on which he was injured by a notice placed [206]*206on the side of the car on the afternoon before the accident. The notice stated that a running board needed repair. He went on the roof at 7:15 A. M. and walked on the running boards until he was alongside the defective one. He had his chisel in one hand, his hammer in the other and stood on the running board which was rotting with his back to the icy roof. He reached down and grasped the rotting edge of the board and pulled hard enough for a piece of the board a foot long and an inch wide to give way and to balance himself he stepped back on the icy roof and slipped and fell 11 feet 10 inches to the hard macadamized ground beside the car. At the hearing it was admitted that this step on the icy roof because the rotten piece gave way was “inadvertent.” Under the Act we are not concerned with acts constituting negligence which contributed to the slippery condition of the ice in causing his fall, for if they were, that was a matter for the jury’s consideration in mitigation of damages. It is certain that his fall was not by his deliberate as distinguished from inadvertent action.
From the above facts the jury could have inferred that the place at which he was ordered to work was an unsafe one. In addition, it was admitted by the Company’s witness, the foreman under whom Fugazzi worked, that the ice made an unsafe hazard to the workman.1 This testimony by the Company’s witness was to rebut the undisputed testimony that other railways protected their workmen on the running boards surrounded by icy roofs by putting sand or salt on the ice.
Clearly the jury could draw the inference that this foreman’s excuse for not salting or sanding it was sheer nonsense, because the weather conditions on all the preceding days and on that day showed the ice would have melted during the day and the sand or salt swept off or hosed off before the car was joined to a train. The jury well could have disbelieved his-testimony that the icy-roofed car was a safe place to work and accepted the contrary testimony of witness Wise.
Contradicting the foreman’s testimony concerning safety of the icy roof and the duty of the Company when icy condition of car tops exists is the following testimony given by the expert witness, Mr. Wayne E. Wise of the Brotherhood of Railway Carmen of America and Chairman of the Joint Protective Board of the' defendant Company and its affiliated; lines. Wise was an experienced car repairman. He said that part of his duties-as local Chairman is in connection with safety working conditions. That as General Chairman his jurisdiction extends from Portland, Oregon to Los Angeles,California, and that he makes personal trips and job studies in those places. When a man has to repair a walk on the roof (limiting the question to situations when cars have icy roofs on them), the best practice when a man is repairing a walk on top (the witness when conducting the survey) found that the icy conditions are best overcome by the use of salt or sand sprinkled on the roof of icy cars. That from his experience that he had observed of cars that were placed in-the shop — he was speaking now of boxcars with tin roofs that were placed in the shop overnight — ice could not accumulate.
On cross-examination by counsel for defendant the witness testified in substance that when he spoke about using salt and sand, he would put that on top-of the car, when it had a glazed ice condition. Obviously the jury could infer that without sand or salt the place Fú-[207]*207gazzi was ordered to work in was unsafe.
This witness further testified that Rule 49-A of the Motive Power and Car Departments agreement between the defendant and the System Federation No. 114, Railway Employees’ Department, American Federation of Labor, Mechanical Section thereof, dated effective April 16, 1942, was in force and effect on February 8, 1950.
This was the date of plaintiff’s accident. The rule reads as follows:
“Employees will not be required to work on engines or cars outside of shops during inclement weather, if shop room or pits are available.”
It is not questioned that shop room was available for this car during this cold night. More important still for the jury’s inferences of the Company’s negligence and as to whether such an icy place was a safe one to work in is General Chairman Wise’s testimony that the likelihood of icy conditions should be thought of in advance. He said:
“Q. It is necessary for the company to have notice that there is an icy condition on the top of the car before that method can be pursued? A. I would say no to that.
“Q. You could do that without ¡notice? A. That is right, maybe.
“Q. What do you mean by that, sir? A. Because where there are icy conditions those safeguards should be thought of in advance.” (Emphasis supplied.)
With this criterion of such an experienced witness, the jury had the following evidence of the “icy conditions” prevailing in the Stockton yards in the preceding three weeks and on the morning of February 8, 1950, at 7:15 A. M. when Fugazzi was injured.
The undisputed evidence is that when the Company’s foreman came to work in the Stockton yard at 6:30 A. M. on February 8, there was ice formed on the ground in the neighborhood of the car. At that time of the year frost and ice were common in that Stockton yard. At 2:29 A. M. on February 8 ground fog began to gather and at 4:28 A. M. it was so dense it obscured the sky completely with a visibility as low as Vie,
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DENMAN, Chief Judge.
Fugazzi appeals from a judgment notwithstanding the verdict setting aside a judgment in his favor for $8,575.00 for personal injuries received while in the employ of the Southern Pacific as car repairman in the Company’s yard at Stockton, California. The court had denied the Southern Pacific’s motion for a directed verdict and the question here is, was the court right in denying that motion or right in granting the motion to set aside the judgment.
The complaint alleged that the Company’s employee had caused Fugazzi to work in a place known to the Employer to be unsafe and as a result of so working he was injured. It was brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, providing that the railway is liable to its employee for “injury * * * resulting in whole or in part from the negligence of any of the * * * employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars * * * appliances * * * or other equipment.” (Emphasis supplied.) The company is liable for its negligence regardless of the employee’s assumption of his risk in working in a negligently kept place of employment, 45 U.S.C.A. § 54, and his contributory negligence does no more than reduce his amount of damage, 45 U.S.C.A. § 53.
The parties are agreed that Fugazzi’s injuries occurred from causes arising at the place he was ordered to work. This was on a line of three boards running lengthwise on the middle of the top of a freight car whose roof sloped downward on each side of the boards. Each board was 5½ inches wide with 1½ inch distance between the outer boards and the inner boards, that is, the width of the three boards is 19½ inches. It is further agreed that the sloping roof surrounding this 1½ inches of working space was covered with slippery ice.
The undisputed evidence is that Fu-gazzi was ordered to work on the car on which he was injured by a notice placed [206]*206on the side of the car on the afternoon before the accident. The notice stated that a running board needed repair. He went on the roof at 7:15 A. M. and walked on the running boards until he was alongside the defective one. He had his chisel in one hand, his hammer in the other and stood on the running board which was rotting with his back to the icy roof. He reached down and grasped the rotting edge of the board and pulled hard enough for a piece of the board a foot long and an inch wide to give way and to balance himself he stepped back on the icy roof and slipped and fell 11 feet 10 inches to the hard macadamized ground beside the car. At the hearing it was admitted that this step on the icy roof because the rotten piece gave way was “inadvertent.” Under the Act we are not concerned with acts constituting negligence which contributed to the slippery condition of the ice in causing his fall, for if they were, that was a matter for the jury’s consideration in mitigation of damages. It is certain that his fall was not by his deliberate as distinguished from inadvertent action.
From the above facts the jury could have inferred that the place at which he was ordered to work was an unsafe one. In addition, it was admitted by the Company’s witness, the foreman under whom Fugazzi worked, that the ice made an unsafe hazard to the workman.1 This testimony by the Company’s witness was to rebut the undisputed testimony that other railways protected their workmen on the running boards surrounded by icy roofs by putting sand or salt on the ice.
Clearly the jury could draw the inference that this foreman’s excuse for not salting or sanding it was sheer nonsense, because the weather conditions on all the preceding days and on that day showed the ice would have melted during the day and the sand or salt swept off or hosed off before the car was joined to a train. The jury well could have disbelieved his-testimony that the icy-roofed car was a safe place to work and accepted the contrary testimony of witness Wise.
Contradicting the foreman’s testimony concerning safety of the icy roof and the duty of the Company when icy condition of car tops exists is the following testimony given by the expert witness, Mr. Wayne E. Wise of the Brotherhood of Railway Carmen of America and Chairman of the Joint Protective Board of the' defendant Company and its affiliated; lines. Wise was an experienced car repairman. He said that part of his duties-as local Chairman is in connection with safety working conditions. That as General Chairman his jurisdiction extends from Portland, Oregon to Los Angeles,California, and that he makes personal trips and job studies in those places. When a man has to repair a walk on the roof (limiting the question to situations when cars have icy roofs on them), the best practice when a man is repairing a walk on top (the witness when conducting the survey) found that the icy conditions are best overcome by the use of salt or sand sprinkled on the roof of icy cars. That from his experience that he had observed of cars that were placed in-the shop — he was speaking now of boxcars with tin roofs that were placed in the shop overnight — ice could not accumulate.
On cross-examination by counsel for defendant the witness testified in substance that when he spoke about using salt and sand, he would put that on top-of the car, when it had a glazed ice condition. Obviously the jury could infer that without sand or salt the place Fú-[207]*207gazzi was ordered to work in was unsafe.
This witness further testified that Rule 49-A of the Motive Power and Car Departments agreement between the defendant and the System Federation No. 114, Railway Employees’ Department, American Federation of Labor, Mechanical Section thereof, dated effective April 16, 1942, was in force and effect on February 8, 1950.
This was the date of plaintiff’s accident. The rule reads as follows:
“Employees will not be required to work on engines or cars outside of shops during inclement weather, if shop room or pits are available.”
It is not questioned that shop room was available for this car during this cold night. More important still for the jury’s inferences of the Company’s negligence and as to whether such an icy place was a safe one to work in is General Chairman Wise’s testimony that the likelihood of icy conditions should be thought of in advance. He said:
“Q. It is necessary for the company to have notice that there is an icy condition on the top of the car before that method can be pursued? A. I would say no to that.
“Q. You could do that without ¡notice? A. That is right, maybe.
“Q. What do you mean by that, sir? A. Because where there are icy conditions those safeguards should be thought of in advance.” (Emphasis supplied.)
With this criterion of such an experienced witness, the jury had the following evidence of the “icy conditions” prevailing in the Stockton yards in the preceding three weeks and on the morning of February 8, 1950, at 7:15 A. M. when Fugazzi was injured.
The undisputed evidence is that when the Company’s foreman came to work in the Stockton yard at 6:30 A. M. on February 8, there was ice formed on the ground in the neighborhood of the car. At that time of the year frost and ice were common in that Stockton yard. At 2:29 A. M. on February 8 ground fog began to gather and at 4:28 A. M. it was so dense it obscured the sky completely with a visibility as low as Vie, that is, “dense fog.” This continued until 9:24 A. M., long after the accident. This ice on the car top was formed by a temperature record of that morning of not less than 32 degrees. The undisputed further evidence is that between January 23 and February 8 there had been nine nights of sub-freezing temperatures successively of the following degrees, all but one much lower than on February 8: 29, 27, 28, 25, 32, 30, 29, 26 and 24. Fugazzi’s foreman worked in the repair yard in the mornings succeeding all these low temperatures. The jury well could infer that he or other foremen must have known of these cold nights and the ice on the ground and should have known the likelihood that the roof on the morning of February 8 could have slippery ice or frost formed on it from the freezing or frosting of the dense fog wetting it — , that is to say, as stated by Wise, the prior icy conditions required that the safeguards of salt or sand should be prepared for in advance and Fugazzi not allowed to work without such preparation.
We think the District Court was right when it denied the defendant’s motion for an instructed verdict and erred when it ignored the testimony of Wise and the admission of the foreman and found that the icy roof was a safe place to work.
The judgment setting aside the judgment in favor of Fugazzi is reversed and the judgment in his favor is upheld.