The Federal Reporter (Annotated), Volume 174: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. January-March, 1910. Page: 84
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174 FEDERAL REPORTER.
Svedborg, 194 U. S. 201, 24 Sup. Ct. 656, 48 L. Ed. 935; Mt. Adams,
etc., Ry. v. Lowery, 74 Fed. 463, 20 C. C. A. 596. If the plaintiff
has produced material evidence, sufficient, if believed and uncontra-
dicted, to warrant a verdict, no amount of contradictory evidence will
authorize the trial judge to take the question of its effect and weight
away from the jury. Railroad Co. v. Slattery, 3 App. Cases, 1155;
Insurance Company v. Doster, 106 U. S. 30, 32, 1 Sup. Ct. 18, 27 L.
Ed. 65; Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780.
But it is said that the testimony of the plaintiff upon the facts ma-
terial, and, indeed, vital to any recovery by him, are in flat contradic-
tion with undeniable physical conditions, which make his evidence in-
credible and create no real conflict of testimony. Penn. Co. v. Whit-
ney (C. C. A.) 169 Fed. 572, 576. Byers v. Carnegie Co., 159 Fed.
347, 86 C. C. A. 347, 16 L. R. A. (N. S.) 214 That a connection had
been made before the engine moved in the direction of Rochford must
be conceded No movement of the switch itself was possible with
the weight of even the rear wheels of the tender upon the switch
points. It follows, therefore, that the operation of the setting of the
switch must have been completed before the movement of the en-
gine, at least far enough to make a sufficient connection to enable
the engine to move out upon the switch as set for the movement out.
Upon this state of facts counsel say that it follows that the aver-
ment of the plaintiff's petition and the testimony of the plaintiff him-
self that he was struck while operating the switch is necessarily untrue
and incredible. It was the duty of the trial judge, and also the duty
of this court, when his action is assigned as error, to give the plaintiff
the benefit of every fair inference which might reasonably be drawn
from the evidence by the jury, when guided by sound processes of
reasoning and applicable principles of law. Now it is said that the
pleading estops the plaintiff by in substance and meaning charging
that the movement of the engine which struck him occurred while he
was operating the switch.
Recurring to the way this switch was handled: When Rochford
started the movement, the lever was down on the ground, and the
ball upon its end pointed west, or toward the engine, standing 21 feet
away and just beyond the ends of the switch points to be moved. His
back, when raising this lever up, was, as he says, toward the engine,
and so continued while he pushed it down upon the other side, so
that the ball would point east. The last operation connected with set-
ting was to latch the switch lever bar down by means of a device close
to the ground. Rochford says that he had some trouble about this,
and had to use his foot to press the bar into the latching appliance.
All of this time his back was to the engine. This operation of latch-
ing was for the purpose of holding the switch as set; the points being
in connection with the rails from which the engine should come at one
end and with the rails upon which it was to move at the other. The
fastening of the latch, when the switch was set, must be fairly con-
sidered as a part of the operation of the switch lever. Neither does
it necessarily follow that the points were not in proper connection with
the rails at either end after the lever was pushed down, so as to point
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The Federal Reporter (Annotated), Volume 174: Cases Argued and Determined in the Circuit Courts of Appeals and Circuit and District Courts of the United States. January-March, 1910., legislative document, 1910; Saint Paul, Minnesota. (https://digital.library.unt.edu/ark:/67531/metadc38220/m1/96/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.