This is an action by the plaintiff in error to recover damages for personal injuries occasioned by the alleged negligence of the defendant in error. The main question involved in this case is whether the court was right in granting defendant’s motion for a nonsuit at the close of plaintiff’s testimony.

*620 It appears from the evidence that plaintiff was employed by the defendant as a yard switchman in defendant’s yard at Barstow, Cal. The west end of the Barstow yard is downgrade, and the cars do not stand on the tracks at this point unless the brakes are set. There were five men in the crew of switchmen at this end of the yard. A Mr. Wagner was foreman and had charge of the work. He had full control and directed the switchmen in their work.

In switching cars from one track to another at this end of the yard, it is necessary to have a man on the top of each cut of cars when going for a distance of 14 car lengths or more to hold them with brakes and keep them from running down the switch and striking and damaging other cars and their contents. On the morning of December 14, 1907, the plaintiff, who prior to that time had been at work in the yard as a switchman for 57 nights, rode down the switch track with a coal car followed by a tank car and a box car. Plaintiff was on the coal car. These cars were not coupled together, and as they moved down the track they bumped together. Plaintiff, accordingly, set the brake on the coal car on which he was riding and got down to adjust the coupling between that car and the tank car so that the two cars would couple when brought together. While attempting to adjust the coupling, a number of cars — four or five — were sent down the switch for a distance of 14 car lengths or more, without any one in charge, and these cars striking forcibly against the cars, the coupling of which plaintiff was attempting to adjust, caught the plaintiff’s right arm in the coupling and crushed it so that it had to be amputated. The .cut of four or five colliding cars had been sent down the switch by the foreman, Wagner. Upon the trial of the case Wagner testified:

This evidence tended to establish the fact that the defendant was negligent either by the negligent act of the foreman in allowing the cars which -caused the accident to run down without a switchman and strike the car upon which plaintiff was working, or because of the failure of the company itself in not providing a sufficient number of switchmen to do -the work required. " ■

. It is provided in section 1970 of the Civil Code of California that:

*621 The testimony was clearly sufficient in either view to establish the liability of the defendant under this statute.

But it is contended that the plaintiff was guilty of contributory negligence in going in between the cars to adjust the coupler without signaling the foreman to stop. The plaintiff testified that the cut-off lever which hooked on to the drawbar would not work from the brake handle on the outside, so he went in between the cars to adjust the coupler by hand. Armstrong, one of the switchmen in plaintiff’s crew, testified:

The foreman testified:

The inference to be drawn from this testimony is that the situation did not require the plaintiff to signal the foreman to stop the work of switching, and had he done so he would have been discharged from the service.

It is further contended that it was the duty of the plaintiff' to listen for cars coming clown the switch before putting himself in a dangerous position between the cars, particularly with his back to the tank car. The plaintiff testified:

Armstrong, one of the switchmen, testified:

The testimony of the plaintiff that he did look up the track and saw-nothing was coming tended to exonerate him from the charge of negligence in going between the cars without looking for danger; and certainly the court could not infer from the testimony that he was negligent by reason of the single fact that he went in between the cars with his back to the tank car. We do not know, or can we infer from the testimony, that the plaintiff took a specially dangerous position in that respect, and, besides, upon a motion for a nonsuit the plaintiff is entitled to the benefit of all inferences in his favor which the jury could have been justified in drawing from the testimony. Sonnenberg v. Southern Pac. Co., 159 Fed. 884, 886 , 87 C. C. A. 64, 66 . In our *622 opinion the testimony tended to show-that plaintiff was not guilty óf contributory negligence, and, uncontradicted, the testimony would have justified the jury in so finding.

The only other question relates to'the action of the court in rejecting- testimony which, in view of a new trial, should be determined. When the witness Wagner was upon the stand, he was asked by plaintiff’s attorney: “What would you have done if he had stopped you?” The defendant objected to this question as calling- for incompetent, irrelevant, and immaterial testimony.' The witness had already testified that if the plaintiff had stopped him he would not have done it very often — clearly intimating that the plaintiff would have been .discharged from the service if, under the circumstances, he had signaled the foreman to stop the work of switching. But in this connection we must not overlook plaintiff’s testimony that he looked up the track and saw no cars coming- down the switch. There was therefore no apparent danger calling for a signal from the plaintiff to the foreman; that is to say, the plaintiff did not refrain from signaling the foreman because he was afraid of being discharged, but because it did not appear that there was any occasion for such signal. In this state of the evidence, we do.not see how the answer of the witness to the question could have been material.

But upon the question whether the evidence was sufficient to go to the jury we think the court was in error. The language of the Supreme Court in Kreigh v. Westinghouse & Co., 214 U. S. 249, 256 , 29 Sup. Ct. 619, 622 ( 53 L. Ed. 984 ), is peculiarly applicable to this case r

What the Supreme Court said in Gardner v. Michigan Central Railroad, 150 U. S. 349, 360 , 14 Sup. Ct. 140, 144 ( 37 L. Ed. 1107 ), is also applicable: .

Under this rule, the case should have been left to the jury under proper instructions.

The judgment of the Circuit Court is reversed, with instructions to grant a new trial.