it be at half loaf because he's already done what needs to be done to cover the chain cross opening the one not let me let me rephrase that slightly what's there to preclude him from doing what he did i mean your point is that he was negligent or that the jury could find him one hundred percent negligent in attempting to her and attempting to open the coupling device of that second car but is there anything that he or any rule that preclude him from doing it manual no there's no rule so if there's no rule that precludes him from doing it manually how can one hundred percent negligence to him by the acts that he had to talk that's correct and you think that's a reasonable jury could could come up to that conclusion or i do i do and it's not just only because he decided to open the second not let me ask you this do you think that happens frequently you think it happens that a lot th the opening above of a second locking device the knocking on the second car when it's not necessary to open it because you could force it open by pushing one car into the other but do you think it happens i don't have any then a couple that he took additional action well then why don't we take that experience as suggesting maybe the plaintiffs in this case and that very same experience in the past and said you know i've tried to before that way it hasn't worked i'm going to of skip that step and go directly to opening it manually seems really small doesn't it should there's a valid defense under the federal safety appliance act is we've been discussing already that plaintiff's own negligence think that i don't have assumed within the news that what you're saying falls within a correct answer and there's also a lot of life safety rule that provides that you're supposed to take the form the phillips case from the four circuit that provides him multi factorial task regarding whether or not a train car is in use for under the safety of mindset that multi fact ramiro but in your reply brief you really don't put forth you know these two different lines of cases and saying phillips is a better reason downline a case that we should follow you sort of just and i refer to one of them is the sole cause argument that's made by the senate and the other is the end use argument that's being made by the defendant i'm going to address the sole cause argument first up i think what the court needs to keep in mind is the f b i lays extremely and of course i think there's language i can't seem to find a right now there's language from a us supreme court case that talks about it's the rare case a very rare case where  should be taken away from the jury and i'm sure you're very familiar as plaintiff's counsel that you don't want issues taken away from the jury you want to be able to present it to the jury and let the jury decide that i mean the defendant is entitled to that same benefit that it should be a very rare case that an issue should be taken away from the jury but that's exactly what happened here and why should why and why should we have pulled out why should we where you have a very strong case that the defendant was negligent and your client is not one hundred percent negligent certainly but before injury clear that this component failed and that failure calls contributed in any part to mr harlan his injuries but no reasonable finder of fact to come to an ultimate solution that is why death row is cracked and that's why i think this portion of her seaboard different than phillips we're bound to follow seaboard and not phelps well your honor i would i would call the ports attention of the opinion u s versus erie railroad company right and that's a us supreme court case from any particular cargo on board or anything else i think the sheer fact that it was involved that vehicle was involving its switching abberations frames the color vision the safety plan sac and the play let me suggest this then to the extent that cars cannot be in use except when already coupled to another car which in turn are coupled to the train  locomotive which makes it a train your we would have to limit the federal safety federal client safety whatever that is from the train there's a single car let's say it's on a slope a standard procedure would be for train men to go out and to set the hand brakes on that car to keep that car from rolling now that car's not being it's not being joined up with other cars no one is trying to put on the brakes to keep it from rolling away is it in use then i mean they are there is it necessary to something that for something to have been bad to it or is being that somehow the funding could not put forth that the plaintiff was solely negligent as a result i would argue that that is not correct that the stance  and the technique i've performed by playing in attempting to open enough hole very clearly could have caused his fact injury and on the mechanism was broken mr highlander it already felt something you know already but felt some sort of pain also plaintiff might this council mention it mentions that  so to pull the pin the after he pulled it the same if not trying to think of a good way to describe some of the softer less effort so he  clearly pulls a pin lifter handle and present the same way a second time the rotations the same whether the lock the mechanism is in place or not it doesn't change the rotation of the