ROGERS, Circuit Judge
(after stating the facts as above). J1] The versions of the accident presented by plaintiff and defendant respectively are diametrically opposed. The jury’s duty was- to determine the facts and they haye found for the plaintiff. This court does not sit to review conclusions of. juries upon questions of fact. The plaintiff’s version of the. accident is corroborated by a witness who was working with him on the same train when the accident occurred. On the day of the accident there was in force and effect a rule of the defendant’s which is as follows:
“A blue flag by day and a blue light by night displayed at one or both ends of an engine, car, or train indicates that workmen are under or about it. When thus protected it must not be coupled to or moved. Workmen will display the blue signals and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track so as to intercept the view of the blue signals without first requiring the workmen to remove them.”
The plaintiff claims that he began his inspection at the rear end of the train, starting at the caboose and working forward. When he had examined some 8 or 10 cars, he discovered a break in the train line; that a nipple was broken in the thread and had to be repaired. He then walked to the tool box near the head end of the train in order to get a nipple to make the repair with. After getting it from the tool box he went to the head end of the train, and there saw that the blue flag was up and no engine was attached'to the cars, and he told the man in charge of the blue flag that he had a small repair to make and to be sure and look out for him. He then went back to make the repair,- and while he was still between the two cars and was about to couple the hose, without any warning to him, no whistle or bell being heard, there came a violent crash against the train upon which he was working, which carried the whole line of cars nearly" a whole car length back, causing a wheel of the car upon -which he was working to run over his leg, making necessary an amputation four inches below the knee.
[477]*477The yard conductor was called as a witness for the defendant, and testified that on the day of the accident he was instructed by the yardraaster to drill out of the train and put into the shop a certain car marked for the “shop,” which was about in the middle of the train upon which plaintiff was at work. This witness stated that when he arrived at the train the blue flag was up and that he waited until the flag was taken down. Two trainmen testified that the flag was taken down because the yard conductor ordered it down, and that the yard conductor, as soon as' the flag was taken down, hooked up the engine. This appears to have been done without any one taking the trouble to ascertain whether men were under the train, as the blue flag indicated that they were; and then, according to the testimony of the plaintiff, came the crash and the resultant injury.
[2, 3] The first assignment of error — there are three in all — relates to the admission of testimony. When the yard conductor was on the stand and was asked on cross-exanu .a tion: “Did you tell this plaintiff anything at all at the time you say you saw him standing at the side of the car, before he went between the cars?” He answered: “It wasn’t my place.” His counsel then objected to the question as immaterial and irrelevant. The court overruled the objection, and counsel took an exception. An answer was insisted tipon, yes or no, and the witness answered: “No.” This is claimed to be error, and is designated as an attempt to show “an alleged failure to give instructions.” The record, however, does not show that counsel for plaintiff tried to make a point of the fact that this man failed to give any instructions to the plaintiff. Counsel for plaintiff says that he asked the question to test the veracity and recollection of the witness. The question asked was such as counsel was entitled to ask. upon cross-examination.
The cross-examination of a witness is not to be extended to collateral, irrelevant, or immaterial matters; but a rule excluding such evidence is not applied as strictly in cross-examination as iti direct examination. In this respect a court is invested with considerable latitude of discretion, and especially where such matters have been opened up on the direct examination. The witness had stated that he saw plaintiff standing at the end of the car, with his shoulder up against the car, and had asked him to step to the side. The court, "then, was quite within its discretion, to say the least, in allowing the witness to be asked, therefore, on his cross-examination, whether he told the witness anything at all when he saw him standing there.
[4] The second and third assignments of error relate to instructions given to the jury. The first of the instructions objected to was as follows:
“If also you should find from the evidence that this flag was there, even though it was not put there by the plaintiff, but was put there by Sohmers, and you should find that Sohmers did not take the flag away, as coneededly he did not, and that tlie plaintiff still remained in a position ot' danger in between the cars, and that Kennedy removed that flag, or caused its removal by an order to another, while the plaintiff was in that position of danger, without his exercising reasonable care and caution to give notice to the plaintiff, while lie was in this position of danger,, then you may And from those [478]*478facts that the defendant was neglectful or careless, and you can cause it to respond in damages. But that, gentlemen, you can only find, providing you find that the plaintiff all this time was in between the cars, as he claims he was, engaged in making these repairs.”
The second was as follows:
“Mr. McCrossin: I ask your honor to charge the jury that, even though the blue flag were placed in position, if it were moved by any servant of the defendant other than the plaintiff without any notice to plaintiff, if they find they bad reasonable ground to believe that plaintiff was working under the train, that that would be evidence of negligence on the part of the defendant.
“The Court: I have charged that. I will charge it again.”
The objection urged is that, if instructions are based upon an hypothesis of fact which might possibly be deduced from defendant’s case, or upon an hypothesis of fact which might possibly be said to be pieced out of portions of plaintiff’s case combined with certain other portions of the defendant’s case, it is reversible error. And it is said that the instructions complained of are defective in the particular referred to. It is also said that the plaintiff must succeed or fail, according as he has proved or failed to prove the accident which he pleaded. Of course, no one questions the last proposition. We have examined the charge of the court. The court was presented by defendant with a number of requests to charge and they were all given as requested. The court was then asked by plaintiff to charge the instruction already quoted above, being the third assignment of error, and after the court stated: “I have charged that. I will charge it again” — defendant’s counsel said:
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ROGERS, Circuit Judge
(after stating the facts as above). J1] The versions of the accident presented by plaintiff and defendant respectively are diametrically opposed. The jury’s duty was- to determine the facts and they haye found for the plaintiff. This court does not sit to review conclusions of. juries upon questions of fact. The plaintiff’s version of the. accident is corroborated by a witness who was working with him on the same train when the accident occurred. On the day of the accident there was in force and effect a rule of the defendant’s which is as follows:
“A blue flag by day and a blue light by night displayed at one or both ends of an engine, car, or train indicates that workmen are under or about it. When thus protected it must not be coupled to or moved. Workmen will display the blue signals and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track so as to intercept the view of the blue signals without first requiring the workmen to remove them.”
The plaintiff claims that he began his inspection at the rear end of the train, starting at the caboose and working forward. When he had examined some 8 or 10 cars, he discovered a break in the train line; that a nipple was broken in the thread and had to be repaired. He then walked to the tool box near the head end of the train in order to get a nipple to make the repair with. After getting it from the tool box he went to the head end of the train, and there saw that the blue flag was up and no engine was attached'to the cars, and he told the man in charge of the blue flag that he had a small repair to make and to be sure and look out for him. He then went back to make the repair,- and while he was still between the two cars and was about to couple the hose, without any warning to him, no whistle or bell being heard, there came a violent crash against the train upon which he was working, which carried the whole line of cars nearly" a whole car length back, causing a wheel of the car upon -which he was working to run over his leg, making necessary an amputation four inches below the knee.
[477]*477The yard conductor was called as a witness for the defendant, and testified that on the day of the accident he was instructed by the yardraaster to drill out of the train and put into the shop a certain car marked for the “shop,” which was about in the middle of the train upon which plaintiff was at work. This witness stated that when he arrived at the train the blue flag was up and that he waited until the flag was taken down. Two trainmen testified that the flag was taken down because the yard conductor ordered it down, and that the yard conductor, as soon as' the flag was taken down, hooked up the engine. This appears to have been done without any one taking the trouble to ascertain whether men were under the train, as the blue flag indicated that they were; and then, according to the testimony of the plaintiff, came the crash and the resultant injury.
[2, 3] The first assignment of error — there are three in all — relates to the admission of testimony. When the yard conductor was on the stand and was asked on cross-exanu .a tion: “Did you tell this plaintiff anything at all at the time you say you saw him standing at the side of the car, before he went between the cars?” He answered: “It wasn’t my place.” His counsel then objected to the question as immaterial and irrelevant. The court overruled the objection, and counsel took an exception. An answer was insisted tipon, yes or no, and the witness answered: “No.” This is claimed to be error, and is designated as an attempt to show “an alleged failure to give instructions.” The record, however, does not show that counsel for plaintiff tried to make a point of the fact that this man failed to give any instructions to the plaintiff. Counsel for plaintiff says that he asked the question to test the veracity and recollection of the witness. The question asked was such as counsel was entitled to ask. upon cross-examination.
The cross-examination of a witness is not to be extended to collateral, irrelevant, or immaterial matters; but a rule excluding such evidence is not applied as strictly in cross-examination as iti direct examination. In this respect a court is invested with considerable latitude of discretion, and especially where such matters have been opened up on the direct examination. The witness had stated that he saw plaintiff standing at the end of the car, with his shoulder up against the car, and had asked him to step to the side. The court, "then, was quite within its discretion, to say the least, in allowing the witness to be asked, therefore, on his cross-examination, whether he told the witness anything at all when he saw him standing there.
[4] The second and third assignments of error relate to instructions given to the jury. The first of the instructions objected to was as follows:
“If also you should find from the evidence that this flag was there, even though it was not put there by the plaintiff, but was put there by Sohmers, and you should find that Sohmers did not take the flag away, as coneededly he did not, and that tlie plaintiff still remained in a position ot' danger in between the cars, and that Kennedy removed that flag, or caused its removal by an order to another, while the plaintiff was in that position of danger, without his exercising reasonable care and caution to give notice to the plaintiff, while lie was in this position of danger,, then you may And from those [478]*478facts that the defendant was neglectful or careless, and you can cause it to respond in damages. But that, gentlemen, you can only find, providing you find that the plaintiff all this time was in between the cars, as he claims he was, engaged in making these repairs.”
The second was as follows:
“Mr. McCrossin: I ask your honor to charge the jury that, even though the blue flag were placed in position, if it were moved by any servant of the defendant other than the plaintiff without any notice to plaintiff, if they find they bad reasonable ground to believe that plaintiff was working under the train, that that would be evidence of negligence on the part of the defendant.
“The Court: I have charged that. I will charge it again.”
The objection urged is that, if instructions are based upon an hypothesis of fact which might possibly be deduced from defendant’s case, or upon an hypothesis of fact which might possibly be said to be pieced out of portions of plaintiff’s case combined with certain other portions of the defendant’s case, it is reversible error. And it is said that the instructions complained of are defective in the particular referred to. It is also said that the plaintiff must succeed or fail, according as he has proved or failed to prove the accident which he pleaded. Of course, no one questions the last proposition. We have examined the charge of the court. The court was presented by defendant with a number of requests to charge and they were all given as requested. The court was then asked by plaintiff to charge the instruction already quoted above, being the third assignment of error, and after the court stated: “I have charged that. I will charge it again” — defendant’s counsel said:
“I except to tha,t, and I intended to except to the charge with regard to taking the flag away without giving the plaintiff due notice or reasonable notice, because X do not think that is in the case.”
The court thereupon said: “It may not be, but I think it is for the jury to say.” Mr. Williamson, one of the defendant’s counsel, then said: “I take an exception.” We are unable to see anything in these assignments of error. The instructions to the jury were explicit and they were charged that:
“If the accident happened as claimed by the defendant under those cir-, cumstances, of course, there would be no* neglect or fault on the part of the railroad company, and the plaintiff could not succeed in this action.”
There is no foundation for the assumption of the defendant that the case was submitted upon an hypothesis of fact which might possibly be deduced from defendant’s case or upon an hypothesis which might be pieced out of portions of plaintiff’s case combined with certain other portions of defendant’s case. The actual occurrence was either the accident claimed by plaintiff or the one asserted by defendant, and it was properly submitted on that theory.
Judgment affirmed.