Seamas

201 F.2d 140 ATCHISON, T. & S. F. RY. CO. v. SEAMAS. No. 13246. United States Court of Appeals, Ninth Circuit. December 16, 1952. Robert W. Walker and J. H. Cummins, Los Angeles, Cal., Peart, Baraty & Hassard, San Francisco, Cal., for appellant. Michael & Papas, Stockton, Cal., for appellee. Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges. BONE, Circuit Judge. 1 Appellee brought this action under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq., for injuries sustained due to the alleged negligence of appellant, his employer, a common carrier by railroad engaged in interstate commerce. The jury returned a verdict in favor of appellee and awarded damages of $22,500. Judgment was entered on the verdict and this appeal followed. 2 The accident causing appellee's injuries occurred at appellant's Mormon Railroad Yard at Stockton, California on the night of December 9, 1950. In that portion of the yard here concerned there are two tracks, the No. 1 track on the north and the No. 10 track on the south, which run in a general east-west direction and converge at their easternmost points, from which junction there is a single track running to the…

Appellee brought this action under the Federal Employers’ Liability Act, 45 U.S. C.A. § 51 et seq., for injuries sustained due to the alleged negligence of appellant, his employer, a common carrier by railroad engaged in interstate commerce. The jury returned a verdict in favor of appellee and awarded damages of $22,500. Judgment was entered on the verdict and this appeal followed.

The accident causing appellee’s injuries occurred at appellant’s Mormon Railroad Yard at Stockton, California on the night of December 9, 1950. In that portion of the yard here concerned there are two tracks, the No. 1 track on the north and the No. 10 track on the south, which run in a general east-west direction and converge at their easternmost points, from which junction there is a single track running to the east, known as the “tail track.” The three tracks thus form a rough “Y” pattern. Extending west from tracks 1 and 10 are other tracks, numbered consecutively from the north to- the south. Thus tracks 2, 3, 4, 5 and 6 are connected with the No. 1 track and tracks 7, 8 -and 9 are connected with the No. 10 track.

The tracks are laid out in this -manner to facilitate switching cars on to any one…

(concurring specially).

1 think this instruction was distinctly misleading and that it was error to give it. An important circumstance in the case was the fact that when the plaintiff climbed on the car he went up in a place where he was hidden from the view of the men in the locomotive cab, contrary to the customary and accepted practice. This circumstance had an important bearing both upon the question whether the men on the locomotive were negligent, and upon the question whether the plaintiff himself was careless.

I am satisfied that with these circumstances before the jury, the giving of this instruction could serve no purpose except *146 to mislead by creating a general impression that the fact that an order was given somehow relieved the plaintiff of his burden of proof on the issue of defendant’9 negligence, and eased his duty in respect to his own care. In my opinion this instruction had the same kind of vice found in the instruction held erroneous in Atlantic Coast Line R. Co. v. Dixon, 5 Cir., 189 F.2d 525 .

I also think the instruction was bad because it did not relate to the facts in the case, for plaintiff was not ordered to go up on the wrong side of the car,…