COTTERAL, District Judge.
This action was brought against the Director General of Railroads (for whom the plaintiff in error has been substituted) by the defendant in error to recover damages for personal injuries sustained, as his petition avers, while he was employed as a switchman, by falling because of a defective handhold in the ladder of a car moving in interstate commerce, in the yards of the Chicago, Burlington & Quincy Railroad Company, at Alliance, Neb. The defendant answered, admitting that there was the defective car equipment, and that the car .was about to be switched for the purpose of interstate transportation of goods, denying the other averments of the petition, and alleging that the plaintiff obtained his position by fraudulently misrepresenting his former employment and concealing prior injuries, that he was a victim of epilepsy, to which his fall was attributable in whole or in part, and that his injury, which was slight, was the voluntary result of a design to make an exorbitant and fraudulent claim against the defendant. It was conceded at the trial of the case that the car in question was partially loaded for consignment from Alliance to a point outside of Nebraska.
The jury returned a verdict in plaintiff’s favor for $27,500, and judgment was entered for that sum, but he was required to remit the excess over $20,000 as' a condition to the overruling of defendant’s motion for a new trial. There are 35 assignments of error, but they have been grouped and discussed under 11 heads, and they may be still further condensed for the purposes of our decision.
A principal contention, embraced in a number of assignments, is that the trial court erred in excluding evidence offered to defeat the action, on the ground that the plaintiff fraudulently secured his employment, as pleaded, and in refusing instructions tendering such defense. In our opinion, the rulings were correct. The complaint is not that proof is incompetent which tended to attribute the fall from the car to prior injury or affliction. That is far different from permitting a retroactive dissolution of the relation of master and servant, by virtue of the contract, which, even if voidable, was, while it- subsisted, attended with the duty, required by law, for the safety of the latter. Cases are cited involving different facts, but of contrary import in principle. We regard the decisions such as Lupher v. Atchison, T. & S. F. Ry. Co., 81 Kan. 585, 106 Pac. 284, 25 L. R. A. (N. S.) 707, as declaring the sound and just rule, namely, that there is liability to the employee, notwithstanding the inducement to the contract. Furthermore, this action was brought under the federal Employers’ Liability Law (35 Stat. 65 [Comp. St. §§ 8657-8665]), and the fault of the defendant was alleged under the Safety Appliance Acts (27 Stat. 531; 32 Stat. 943 [Comp. St. §§ 8605-8615]). And in our opinion we should hold that the defense urged was not available, in view of the positive terms of sections 1 and 5 of the former act. See Phila., Balt. & Wash. R. R. v. Schubert, 224 U. S. 603, 32 Sup. Ct. 589, 56 L. Ed. 911; Chicago & Alton R. Co. v. Wagner, 239 U. S. 452, 36 Sup. Ct. 135, 60 L. Ed. 379; Spokane & Inland R. R. v. Campbell, 241 U. S. 497, 36 Sup. Ct. 683, 60 L. Ed. 1125.
[355]*355Errors are assigned to the admission of testimony by singling out certain disconnected questions and answers. None of them impress us as being well taken or prejudicial. No authority is cited to sustain them, except in one instance which we shall notice, as it is not altogether without force in the way it is presented. It occurred in the examination of Dr. Dwyer, who stated that by the test of pricking the plaintiff with a pin there was some muscular response in the first experiment, and a great deal more in the second. We quite agree, by authority of this court, that proof was not admissible of subjective symptoms, such as statements or voluntary movements. Union Pac. R. Co. v. McMican, 194 Fed. 393, 114 C. C. A. 311. But the testimony does not appear to be open to that objection. The trial judge repeatedly excluded such testimony. The witness stated he could not form an opinion as to the response from the application of heat or cold, without some manifestation of voice or movement. But it seems certain from the rulings made, and from the fact that plaintiff was blindfolded when the pin tests were given, that the witness meant to confine his answers only to the involuntary result of them, and that they must have been so considered by the jury. Hence we think the testimony was unobjectionable. Some of the testimony criticized was by way of professional opinion, and in the form of direct inquiry as to the facts; but it could not have been regarded by the jury, under the circumstances, in any other than in the former sense, and the foundation was amply laid. We are not persuaded that any material error was committed in admitting or excluding testimony.
It is insisted that there was error in giving and refusing instructions to tire jury. One assignment is that a verdict should have been .directed for the defendant for want of proof to establish a cause of action. It is clear, however, that the plaintiff, while scaling the car ladder in the course of his employment, fell because of the loose and defective handhold, and was thereby injured, and the evidence was ample to sustain a finding by the jury that the fall and injury were proximately due to the failure of the defendant to maintain the ladder in a' safe condition, as required by the Safety Appliance Act, and not to some other cause, for example, the plaintiff’s alleged impaired condition. The assignment is therefore not well taken. In the same connection, it is said that the court erred in submitting to the jury the task of separating the damages due to this accident and the plaintiff’s former injuries. It was certainly the province of the jury to ascertain the damages proximately resulting from the fall of plaintiff, and to deny allowance to him for any other cause, and the court therefore properly left this duty to the jury.
Another exception was that there was error in refusing an instruction to the jury to the effect that plaintiff could not recover for mental pain and anguish. But the main charge eliminated such element, and there was no error in not repeating it, at the request of the defendant. Again, there is complaint that the court instructed the jury that allow» anee might be made to the plaintiff “for any future pain and suffering that is reasonably certain to result because of such fall.” The rule invoked is that it is error to submit to a jury matters not supported by [356]*356evidence but resting on probabilities or speculation. It is only needful to say that the evidence was sufficient to uphold a finding that pain and suffering would result in the future from the fall.
Another objection is that the court commented on the contingency as to who would pay the cost of the railroad operations. The remarks of the court occurred at the beginning of the charge in a general statement of the case.
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COTTERAL, District Judge.
This action was brought against the Director General of Railroads (for whom the plaintiff in error has been substituted) by the defendant in error to recover damages for personal injuries sustained, as his petition avers, while he was employed as a switchman, by falling because of a defective handhold in the ladder of a car moving in interstate commerce, in the yards of the Chicago, Burlington & Quincy Railroad Company, at Alliance, Neb. The defendant answered, admitting that there was the defective car equipment, and that the car .was about to be switched for the purpose of interstate transportation of goods, denying the other averments of the petition, and alleging that the plaintiff obtained his position by fraudulently misrepresenting his former employment and concealing prior injuries, that he was a victim of epilepsy, to which his fall was attributable in whole or in part, and that his injury, which was slight, was the voluntary result of a design to make an exorbitant and fraudulent claim against the defendant. It was conceded at the trial of the case that the car in question was partially loaded for consignment from Alliance to a point outside of Nebraska.
The jury returned a verdict in plaintiff’s favor for $27,500, and judgment was entered for that sum, but he was required to remit the excess over $20,000 as' a condition to the overruling of defendant’s motion for a new trial. There are 35 assignments of error, but they have been grouped and discussed under 11 heads, and they may be still further condensed for the purposes of our decision.
A principal contention, embraced in a number of assignments, is that the trial court erred in excluding evidence offered to defeat the action, on the ground that the plaintiff fraudulently secured his employment, as pleaded, and in refusing instructions tendering such defense. In our opinion, the rulings were correct. The complaint is not that proof is incompetent which tended to attribute the fall from the car to prior injury or affliction. That is far different from permitting a retroactive dissolution of the relation of master and servant, by virtue of the contract, which, even if voidable, was, while it- subsisted, attended with the duty, required by law, for the safety of the latter. Cases are cited involving different facts, but of contrary import in principle. We regard the decisions such as Lupher v. Atchison, T. & S. F. Ry. Co., 81 Kan. 585, 106 Pac. 284, 25 L. R. A. (N. S.) 707, as declaring the sound and just rule, namely, that there is liability to the employee, notwithstanding the inducement to the contract. Furthermore, this action was brought under the federal Employers’ Liability Law (35 Stat. 65 [Comp. St. §§ 8657-8665]), and the fault of the defendant was alleged under the Safety Appliance Acts (27 Stat. 531; 32 Stat. 943 [Comp. St. §§ 8605-8615]). And in our opinion we should hold that the defense urged was not available, in view of the positive terms of sections 1 and 5 of the former act. See Phila., Balt. & Wash. R. R. v. Schubert, 224 U. S. 603, 32 Sup. Ct. 589, 56 L. Ed. 911; Chicago & Alton R. Co. v. Wagner, 239 U. S. 452, 36 Sup. Ct. 135, 60 L. Ed. 379; Spokane & Inland R. R. v. Campbell, 241 U. S. 497, 36 Sup. Ct. 683, 60 L. Ed. 1125.
[355]*355Errors are assigned to the admission of testimony by singling out certain disconnected questions and answers. None of them impress us as being well taken or prejudicial. No authority is cited to sustain them, except in one instance which we shall notice, as it is not altogether without force in the way it is presented. It occurred in the examination of Dr. Dwyer, who stated that by the test of pricking the plaintiff with a pin there was some muscular response in the first experiment, and a great deal more in the second. We quite agree, by authority of this court, that proof was not admissible of subjective symptoms, such as statements or voluntary movements. Union Pac. R. Co. v. McMican, 194 Fed. 393, 114 C. C. A. 311. But the testimony does not appear to be open to that objection. The trial judge repeatedly excluded such testimony. The witness stated he could not form an opinion as to the response from the application of heat or cold, without some manifestation of voice or movement. But it seems certain from the rulings made, and from the fact that plaintiff was blindfolded when the pin tests were given, that the witness meant to confine his answers only to the involuntary result of them, and that they must have been so considered by the jury. Hence we think the testimony was unobjectionable. Some of the testimony criticized was by way of professional opinion, and in the form of direct inquiry as to the facts; but it could not have been regarded by the jury, under the circumstances, in any other than in the former sense, and the foundation was amply laid. We are not persuaded that any material error was committed in admitting or excluding testimony.
It is insisted that there was error in giving and refusing instructions to tire jury. One assignment is that a verdict should have been .directed for the defendant for want of proof to establish a cause of action. It is clear, however, that the plaintiff, while scaling the car ladder in the course of his employment, fell because of the loose and defective handhold, and was thereby injured, and the evidence was ample to sustain a finding by the jury that the fall and injury were proximately due to the failure of the defendant to maintain the ladder in a' safe condition, as required by the Safety Appliance Act, and not to some other cause, for example, the plaintiff’s alleged impaired condition. The assignment is therefore not well taken. In the same connection, it is said that the court erred in submitting to the jury the task of separating the damages due to this accident and the plaintiff’s former injuries. It was certainly the province of the jury to ascertain the damages proximately resulting from the fall of plaintiff, and to deny allowance to him for any other cause, and the court therefore properly left this duty to the jury.
Another exception was that there was error in refusing an instruction to the jury to the effect that plaintiff could not recover for mental pain and anguish. But the main charge eliminated such element, and there was no error in not repeating it, at the request of the defendant. Again, there is complaint that the court instructed the jury that allow» anee might be made to the plaintiff “for any future pain and suffering that is reasonably certain to result because of such fall.” The rule invoked is that it is error to submit to a jury matters not supported by [356]*356evidence but resting on probabilities or speculation. It is only needful to say that the evidence was sufficient to uphold a finding that pain and suffering would result in the future from the fall.
Another objection is that the court commented on the contingency as to who would pay the cost of the railroad operations. The remarks of the court occurred at the beginning of the charge in a general statement of the case. It was said to be a matter of uncertainty whether the settlements would be out of the funds of the Director General, and one of no great importance or consequence, and again, “not a matter for our consideration.” Obviously, the court was endeavoring to explain why the defendant was a public officer, instead of the railroad company. This was doubtless called for, in order to avoid any misconception hy the jury that might interfere with an impartial consideration of the case. The foregoing is not all that was said, but it is illustrative. If it be assumed there was possible prejudice, this was fully removed when the jury was recalled and the court charged as follows:
“This is a suit against the Director General of Railroads, and not against the railroad company, and I believe I stated at one place that there was an act of negligence charged against the railroad company. It is charged against the Director General operating this railroad company. So -far as I undertook to state the relations between the government and the railway companies during the period that the Director General has control, I think it is entirely immaterial to the trial of the issues in this case. The Director General is the one that is sued, and wherever the money comes from now, or whatever future adjustment shall be made between the railway companies and the Congress of the United States, is a matter that is immaterial to the trial of this issue, which is: Did the plaintiff fall, and was he injured, and was he pecuniarily damaged as a result of that fall? If so that is all that you have to decide here. As to who pays it, or when, or how, is perhaps a matter of more general interest than of interest to us as jurors or courts at this time.”
Error is also predicated on an alleged misstatement in the charge of the accident, to the effect that the plaintiff “had hold with his hand of one rung of the ladder,” whereas “the evidence is uncontradicted he had hold of a rung of the ladder with both hands,” citing the plaintiff’s testimony. The objection would be hypercritical in any event, as the court expressly left the facts to the jury. But the statement in the charge was accurate. It is true counsel assumed in one question that the plaintiff was holding with both hands, when asking whether he was in an upright position, and the answer was in the affirmative. But the assignment is little short of a misquotation, as the plaintiff testified explicitly, in answer to direct questions, that he was holding with his hand, and with his right hand, and there was corroboration by another witness.
The verdict is said to be excessive, but, with doubt of the authority of this court to entertain the objection, it is adverted to, for its influence in considering other questions. This point was raised in the motion for a new trial, along with numerous others, prominent among which was the ground of newly discovered evidence. Affidavits were filed by both parties. There was undoubtedly a strong showing as to prior injuries in opposition to plaintiff’s testimony, of misrepresen[357]*357tation to obtain his employment, and of defendant’s inability to produce the additional evidence at the trial. The motion was overruled, as stated, on condition that plaintiff should remit a portion of his recovery. If the ruling were open to our consideration, we are not convinced there was error or abuse of discretion in making it. Decisions are cited from the state courts, based on state laws, but they do not apply in the federal courts. The complaint of excessive damages cannot be entertained by this court, nor are we authorized to review the action of a trial court at law in denying a motion for a new trial. City of Manning v. German Ins. Co., 107 Fed. 52, 46 C. C. A. 144; Pocahontas Distilling Co. v. U. S., 218 Fed. 782, 134 C. C. A. 566; Whitaker v. U. S., 220 Fed. 114, 136 C. C. A. 206; Fisher Mach. Co. v. Dougherty, 231 Fed. 910, 146 C. C. A. 106; Yellow Cab Co. v. Earle (C. C. A.) 275 Fed. 928.
No other questions are raised which appear to call for special notice. Our conclusion is that the record discloses no reversible error, and for this reason the judgment in this case is affirmed.