#### Jeffers, Administratrix, Appellant, vs. Green Bay & Western Railway Company, Respondent.

*January 30*

February *20, 1912.*

*Trial: Directing verdict: Appeal: Review: Evidence: Uncontradicted testimony: Weight: Physical circumstances: Railroads: Death of switchman: Kicicing cars: Misleading orders: Negligence of foreman: Contributory negligence: Unsafe place: Proximate cause: Questions for jury.*

1. It is the duty of the trial court, if convinced that there is no fair ground in the evidence for a determination in favor of the plaintiff, to direct a verdict for the defendant.

2. Such a decision of the trial court will not be disturbed on appeal unless manifestly wrong. Even if not right upon the ground *316upon which it was ■ made, it may be right upon some other ground.

3. One physical situation demonstrated to have existed, or one circumstance established beyond any reasonable ground for doubt, may outweigh the most positive uncontradicted evidence of one or any number of witnesses.

4. Plaintiff’s intestate, a switchman, was killed by being precipitated from the top of the fifth of a string of cars, which were being pushed southward in defendant’s yard, when the sixth, or most southerly, car was kicked upon a switch track. There was undisputed testimony that, as the sixth car had about reached a cross street, the deceased mounted the northwest corner of that car and was seen standing thereon, and similar testimony that, at a point north of the center of the street, he ascended the ladder at the northeast corner of the fifth car,— the latter testimony being corroborated 'by the certainty that he was on the. fifth car at the fatal moment. The trial court concluded that after mounting the sixth car the deceased had gone down the ladder at the northeast corner thereof and had mounted again at the northeast corner of the fifth car and was proceeding on the top thereof towards the sixth car when the accident happened, and directed a verdict for defendant on the ground that deceased had gone out of the proper course without any reason therefor. *Held*that, in view of the unreasonableness of such movements and the inadequacy therefor of the time in which they must have been made if at all, the jury would have been warranted in finding that deceased did not mount the sixth car at all; and that the court should not have, directed the verdict upon the theory on which it did.

5. The jury might also have found that the deceased mounted first the fifth car at the northeast corner and was proceeding on the top thereof towards the sixth car, supposing that the sixth car was to be spotted on the switch track or that notice would be taken of his position before the stop signal was given to the engineer; and that in so doing he was not acting contrary to orders and was not negligent.

6. Upon the evidence above stated and evidence showing, among other things, that the deceased was not accustomed to yard work and had worked but part of one day in this yard, that the particular ways of the yard were not explained to him, and that the foreman in giving the orders under which deceased was acting had used terms which were likely to mislead as to whether the sixth car was to he kicked or spotted, the jury might reasonably have found that deceased was misled by the negligence of the foreman as to the nature of the movement *317to be executed; that the foreman was also negligent in not observing whether deceased was on the sixth car before giving the signal to stop the other cars; that the working place of deceased was not reasonably safe under the circumstances; and that such negligences, or some of them, proximately caused the accident. It was' error, therefore, to take the case from the jury.

Appeal from a judgment of tbe circuit court for Portage county: Chas. M. Webb, Circuit Judge.

*Reversed.*

Action to recover for tbe claimed negligent killing of Louis Jeffers.

Tbe deceased was an experienced brakeman but not accustomed to yard work, particularly in defendant’s yard at Green Bay, where be was killed. He was familiar with switching movements, called kicking, as well as those called spotting cars. At bis request be was transferred from regular freight train service to tbe particular work. Tbe fatal accident occurred during bis first day’s work and tbe first time be received such an order as tbe one in question. He bad before performed like service but not, perhaps, in a yard where there was a scale track called tbe “scale” or “scales.” He did not ask for instructions. None were given. There were no particular circumstances indicating that be required such other than tbe local custom respecting tbe name of tbe particular track. Tbe work in progress when tbe accident occurred was being done in tbe ordinary way in tbe particular yard. There was evidence to show that tbe cars were moving pretty fast, — perhaps more than ordinarily so. Tbe switching crew was composed of Gallagher, tbe foreman, Jeffers, tbe ■deceased, and one Boex, a switchman, besides tbe men on tbe engine. There was a string of six cars attached to tbe switch ■engine in front. It was on a lead track connected with two or more switch tracks to' tbe south. Tbe last car from tbe engine was a short distance north of a cross thoroughfare, called Mason street. Tbe purpose was to move tbe cars southerly across tbe street and set tbe sixth in on tbe switch *318track, known as the “scale” or “scales.” That was a designation given to the track by the custom in the yard. It turned to the left about 100 feet south of the street. There was a slight easterly curve in the lead track, the degree of curve being such as to enable the engineer from his ordinary position, to see a person, if standing in the street near to and west of the track, or in the act of climbing on the sixth car on such side, or perhaps if on top of the car or the one next to it. There was undisputed oral evidence that before the movement commenced the foreman and Jeffers were in pretty close company west of the track and north of the street. The foreman signaled the engineer to move southerly. A set of weighing scales intercepted the “scale” or “scales” track some twenty rods southerly of the street. There was ground for one circumstanced as Jeffers was, to understand an order to put a can in on the “scales” or ride a car in on the “scales,” to refer to the weighing scales, when the idea might be to put the car on the track on which the weighing scales were located. The-purpose at the time in question, was, as testified by the foreman, to place the car on the “scales” track by a kicking movement. That is, giving the string of ears such speed that, at. a proper point and time, the particular one could be released and the rest suddenly brought to a stop, allowing the former with the brakeman thereon to continue to a suitable clearance on the “scale” track and be there stopped by his setting the-brake. In a movement to place a car on the weighing scales, called “spotting,” the evidence tended to prove that the car would not be detached till in position and the brake set, or something done, if necessary, to prevent its moving by gravity. So, in a spotting movement, it was safe for the brakeman to mount a car next to the particular one on the way to-the latter, while in a kicking movement if he did so and in attempting to pass to the particular car, reached a point near the division between the two at the instant of the release and stop order, he was almost sure to be thrown forward to the *319ground and severely injured, if not killed. There was evidence to the effect that, ordinarily, there was little if any difference between the language of a kicking order and that of a spotting order. The foreman testified that in casé of the latter, with reference to the scales the word “spot” would be used and nothing be said about setting a brake or riding the car. His associate testified that the proper order “would be ‘ride this car and set a brake on it on the scales;’ that would mean a spot, not a kick. It would mean to ‘ride the car.’ ” It was of vital importance for the brakeman to understand the nature of the movement as to whether the car was to be spotted or kicked and to so shape his course as to be on the particular car in case it was to be kicked at the time of the engineer’s response to the stop signal and to be so located as to guard against an inefficient effort to release the car, resulting in its being suddenly brought to a stand with the rest.

There was no rule or general custom in the yard by which one circumstanced like the deceased could understand, with certainty, from the language of the order given whether a kicking or a spotting movement was to • be executed. He might fairly in this case have supposed it to be the latter and so that it was safe to pass from the fifth to the sixth car while the string was being pushed down to place the latter car on the weighing scales. There was evidence tending to show that the method of designating the particular track was not only local but that the characterization in common use was “scale,” not “scales.” The foreman, testified that the latter was the usual term while the superintendent testified that the former was the one commonly used.

About as the movement commenced the foreman said, speaking to Jeffers, “Ride the car” or “this car,” or used words of similar import, “in on the scales >and set the brake and then go to dinner.” The witness testified variously as to the precise words he used, hut there was no very material difference between his^several phrasings of the matter.

*320There was undisputed oral evidence that Jeffers, as the southwest corner of the sixth car reached him, and about in Mason street, ascended the ladder and an instant later was seen on top; also that about the same time he was seen in Mason street on the east side of the track ascend the ladder at the northeast corner of the fifth car and proceed rapidly towards the sixth. After the foreman saw him, as he said, mount the sixth car and the string had attained the proper speed and was at the appropriate location, he released the particular car by using the appliance therefor at the side, gave the engineer the stop signal which was promptly obeyed, the five cars and the engine coming suddenly to a stand, the released car rapidly moving on and, at that instant, Jeffers plunging head foremost from the southerly end of the fifth car.

All the testimony as to Jeffers having mounted the sixth car was by the engineer, the foreman, and switchman Boex. The latter testified to having seen Jeffers standing on top of the sixth car while the foreman was running with the string in readiness to give the stop signal. The one who testified to having seen the decedent mount the fifth car, was a man of mature age who had long been a resident of Green Bay. The effect of his evidence was that the cars were under his observation throughout, the whole occupying but a short time; that he saw Jeffers at a point north of the center of Mason street, on the east side of the track, ascend the ladder at the northeast corner of the fifth car and go rapidly towards the sixth, proceeding till he fell from the top; that when the man took hold of the ladder the cars were moving at a pretty rapid rate, — so rapidly that the foreman whose limbs he could see, had to run to keep up. The testimony of the foreman was the same as regards his running alongside of the car. He did so with his hand holding the switching appliance till the string reached the proper place and speed and then pulled the *321pin and gave tbe engineer tbe stop signal. During tbis time be made no observation as regards tbe whereabouts of Jeffers. Most of tbe time be was, perhaps, where be could not have seen him except by moving back a little from tbe side of tbe cars.

All circumstances referred to are within tbe pleadings and tbe evidence. If all tbe oral testimony be true, Jeffers mounted tbe sixth car, then proceeded quickly, except for tbe instant Boex saw him standing still on top of tbe car, to tbe north end, descended to tbe ground at tbe northeast comer and in Mason street from which be went up tbe ladder at tbe corresponding corner of tbe fifth car, and proceeded rapidly back towards tbe sixth and met bis death in doing so. Tbe trial court adopted that theory. No one in charge of tbe movement, according to tbe evidence, saw Jeffers after be was observed by Boex, as be said, standing on tbe sixth car, till be fell from tbe fifth.

Tbe negligence claimed is: (a) Conduct of tbe engineer and foreman in running tbe cars at an unusual rate of speed without giving proper attention as regards tbe location of Jeffers; (b) Suddenly stopping tbe car on which deceased was located without warning him that such an occurrence was impending or likely to happen; (c) Failure to furnish him a reasonably safe place to work; (d) Failure to instruct him as to tbe peculiar dangers of bis work according to tbe custom in tbe particular yard.

Tbe trial court held that, regardless of whether Jeffers understood what kind of a movement was to be executed, or whether tbe cars were moved at an unreasonable rate of speed, or tbe string after tbe sixth ear was released, was stopped unusually quick, — be went out of bis proper course without any reason therefor and came to bis death thereby. Upon that theory tbe verdict was directed for tbe defendant and judgment rendered accordingly.

*322For the appellant there was a brief by *Phillips & Ilicks,*attorneys, and *Glicksman, Gold ■<& Corrigan,*of counsel, and oral argument by *W. D. Corrigan.*

For the respondent there was a brief by *Greene, Fairchild, North & Parker,*and oral argument by *H. 0. Fairchild.*

Marshall, J.

Is it clear the trial court erred ? It would not avail appellant for it to merely appear here, looking at the printed record alone, that the decision below is wrong. Balancing the mere record probabilities in the affirmative against those in the negative and adding to the latter the superior opportunities afforded the trial court, which could not be presented here, do the former outweigh the latter, — not merely appreciably, but so decidedly as to produce conviction that there can be only slight, if any fair, doubt about it ?

It is recognized that in such circumstances as the trial judge faced, he is bound, in the performance of duty, to take the case from the jury if convinced there is no fair ground in the evidence for a determination in favor of the plaintiff. Efficient administration requires such duty to be met with courage, consideration, and firmness. To the end that such efficiency may be promoted as well as from the very nature of the matter, initial decisions, as in this case, should not be disturbed except for very substantial reasons. Recognizing that, it is the settled policy of this court, one so long adhered to as to have all the force of unwritten law, that the result below will not be disturbed unless not only wrong, but manifestly so.

In determining whether the decision in question will stand the test indicated, we must view it in two aspects: (a) Is it right, looking only at the ground on which it was made? (b) If it be not right on such ground, is it manifestly right on some other ? The real right of the matter is the ultimate end to discover and effectuate, rather than the legitimacy of' the logic upon which the result complained of was grounded.

*323It will be noted by tbe statement, tbat .the circuit judge assumed, because witnesses testified, positively, to having seen Jeffers mount tbe sixth car and no one contradicted them, tbat such must be tbe fact. So tbat was set down as a verity. Tbe testimony of tbe person, who gave. evidence to having seen Jeffers mount the fifth.car from *the*east side, corroborated by tbe certainty tbat be was thereon at the fatal moment, and tbe fact tbat such person was not disputed by tbe word of any other witness, was taken as true, beyond reasonable ground for dispute. So tbat was set down as a second verity. From such premises tbe trial court reasoned to tbe third verity, as was thought, tbat after going up tbe ladder to tbe top of tbe sixth car, tbe decedent traveled thereon to tbe northeast corner thereof, then down tbe ladder at that point to tbe street, such point being nearly as far north as be was before, then tbat be grasped tbe ladder at tbe northeast corner of tbe fifth car as it came to him, ascended to tbe top of such car and proceeded back to reach tbe sixth, and met bis. death in doing so.

In reasoning as indicated, it seems tbe fact was lost sight of or not given due consideration, tbat truth is not, necessarily, according to tbe evidence of one or more witnesses,, however fair they may appear to ’testify, and notwithstanding absence of any direct conflict from tbe mouth of any other-witness. One physical situation demonstrated to have existed, or one circumstance, established beyond any reasonable ground for doubt, may outweigh tbe most positive uncontra-dicted evidence of one or any number of witnesses.

Here we have physical situations and circumstances of tím nature indicated, as follows: Tbe man was on tbe fifth car going to tbe place to which be was assigned when tbe catastrophe occurred. No rational person could be reasonably expected to make such movements in tbe whole, as tbe trial court suggested. Tbe time between tbe claimed ascent to tbe top of tbe sixth car and tbe certain ascent from tbe street to tbe top *324of the fifth, was, under the circumstances, as a jury might reasonably conclude, so inadequate as to produce conviction that two ascents did not occur. Such time was, manifestly, too short, especially if the testimony of Boex, one of the witnesses relied on to sustain the result reached, that he saw Jef-fers standing on the sixth car, is believable. “I claim,” said the witness, “he was standing on the car doing nothing. He was not walking either way. Gallagher was running at that time alongside the south end of the fifth car.” According to this, Jeffers was standing still on the sixth car at a time when, as there is evidence tending to show, it had cleared the street, or nearly so, the engineer had received the kick signal and speeded up the train, and the foreman was making ready to pull the pin, and yet Jeffers covered the length of the car, descended therefrom to the street, about as far north as the point of ascent, waited for the train to move the length of a car, bringing the northeast corner of the fifth one to him, then ascended to the top thereof and doubled back to near the south end by the time it reached a point about eighty feet south of the street where the fatality occurred, — all such movements being equivalent to traveling a greater distance than the foreman covered, who was on a run most of the time as there is evidence tending to prove. We cannot escape the conclusion that a jury, facing the situation pictured, might reasonably reject the whole theory upon which the decision was grounded as utterly improbable, — come to the conclusion that the ascent to the top of the sixth car as testified to by the foreman, the engineer, and Boex, did not occur.

Counsel for respondent present the contrary of the foregoing in its most favorable light, but, at the best possible for that side, only the major probabilities are in favor of the trial court’s theory. The case is to be viewed in the most favorable aspect on the evidence for plaintiff. But, whatever viewpoint be selected for taking a survey of the situation, it seems clear beyond room for fair controversy, that the jury *325might reasonably have come to tbe conclusion that Jeffers did not mount tbe sixth car at all but was on his way there for the first time at the fatal moment. The trial court, erroneously, as it seems, thought the testimony of the three witnesses to the contrary was wholly unimpeached and hence that all the other evidence was required to be harmonized therewith, if possible, and otherwise rejected. That was wrong; very clearly so, as we have seen.

It follows that the decision complained of cannot be supported on the ground on which it was made.

In examining the case further to determine whether the verdict be right, though grounded on untenable reasoning, we must assume, because a jury might have so concluded on the evidence, that at the moment the witnesses claimed to have seen Jeffers mount the sixth car, he, instead, crossed the track just before the car reached him and, a moment later, mounted the fifth car as the northeast corner came to him, and proceeded by way of the top thereof towards his destination on the sixth car, either supposing that the latter was to be spotted on the weighing scales or expecting that some efficient notice would he taken of his whereabouts before giving the stop signal to the engineer. There must he some explanation of his movements which occurred just before the fatal event, consistent with his not expecting, or from his viewpoint being bound to expect, that the movement of the cars which took place was about to happen. Otherwise, in view of the fact that he was an experienced railroad man, the conclusion would he inevitable that he was irrational or bent on committing suicide. Counsel for respondent seem to concede that, and to seek to escape from the dilemma by claiming that decedent’s duty was to mount the sixth car and stay there till he set the brake, and that, had he done so instead of stepping aside, for some unexplained, and unexplainable, reason, and mounting the fifth car from the.street on the east side, either originally or after having descended from the sixth car, he *326would not have encountered tbe danger, and so defendant is not liable; since those in control of tbe car bad no reasonable ground to suppose be would take any sucb course, or be elsewhere than on tbe sixth car when tbe stop signal was given.

Tbe stated argument of counsel is in harmony with part of tbe trial court’s logic, tbe bey to which is that Jeffers in fact mounted tbe sixth car. That, tbe jury might reasonably have rejected, as we have seen.

We are unable to find any satisfactory basis in tbe record for counsel’s theory that, if tbe decedent endeavored to reach bis destination on tbe sixth car by going thereto by way of tbe fifth, mounting it from tbe east side, be disobeyed orders or was guilty, necessarily, of want of ordinary care; especially if be supposed bis position would be observed or some warning would be afforded him before tbe stop signal was given to tbe engineer, moreover, if be supposed, and bad reasonable ground therefor, that be was participating in a spotting movement. Tbe order was not to mount tbe particular car and ride it in on tbe “scale track” and set tbe brake. True, be had to reach tbe top of tbe car in order to ride it and be in position to set tbe brake; but as suggested, we are unable to discover any certain evidence that it was contrary to orders or, necessarily, negligent for him to endeavor to reach bis post by way of tbe fifth car.

We appreciate that for one circumstanced as Jeffers was to cross tbe track before tbe coming car and ascend from that side to tbe top of tbe fifth car and proceed thereon to bis destination, seems somewhat strange; but sucb movements, as we have seen, would be far more reasonable than those supposed and upon which tbe verdict was grounded. Now is it not reasonable to conclude, that it was tbe duty of the foreman, before dropping the sixth car, to have bad some satisfactory evidence that Jeffers bad mounted it? That aspect of tbe matter seems to have been appreciated and, as was supposed, indisputable proof on the question made. If he was not seen *327to mount tbe ear, he must have so suddenly disappeared around the end of it, that the foreman had little, if any, ground to believe he had reached the top. In those circumstances we are not prepared to hold that the jury could not reasonably have decided, had the matter been left to them, that it was the foreman’s duty to have made some effort to acquaint himself with the decedent’s location before giving the stop signal. In such circumstances the case might well have been sent to the jury regardless of whether the design was to execute a spotting or a kicking movement.

So it seems the jury would have had ample ground to conclude that Jeffers supposed the car was to be spotted on the weighing scales. In that event his movements from his viewpoint, were not attended with any danger.- Did he have reasonable ground for so supposing? If so, was his condition of mind attributable to fault of the foreman or others who should have instructed him ?

It seems quite significant that there is ample evidence to sustain the theory that the particular track was known as the “scale,” not th'e “scales.” True, the evidence is perhaps not conclusive on this but is enough so to lead to the conclusion that the jury might -properly have so found. The road superintendent testified, very positively, one’way and the foreman the other. That being so, Jeffers, who was not familiar with the particular yard, or, so far as the evidence shows, with any where there was a track called the “scales” or “scale,” may have thought the car was to be placed on the weighing scale •and been misled in that regard by the foreman’s use of the word “scales,” — the characterization, in common parlance, of weighing scales, instead of “scale,” which might, perhaps, be fairly understood, without reference to the local custom, to mean the scale track. That Jeffers was in some way misled seems pretty certain. In any event the jury had fair room for such conclusion. He would not have taken the course which he did, as the jury might well have concluded, except *328in the belief that the car -was to be spotted. Now if the man was misled and so came to his death, whose fault was it *\*It seems there is ample ground for saying the mischief was caused by the foreman negligently using the term “scales” instead of “scale,” especially under the circumstances of decedent’s well known unfamiliarity with the yard and the particular local custom.

So in view of the suggested known want of experience of the deceased, and of the fact, so far as appears, that there was no rule or custom by which one circumstanced as the de- , cedent was could determine a spotting from a kicking order with certainty, and the use of terms in giving orders quite likely to mislead as to the nature of the contemplated movement, and in view of the further fact that the particular ways of the yard were not explained to the deceased, we are constrained to hold that the jury might reasonably have come to the conclusion that Jeffers was misled by the negligence of the foreman; that there was further negligence in *not*taking some observation as-to whether he was on the sixth car before giving the stop signal; also that his working place was not reasonably safe under the circumstances; and that such negligences, or some of them, were the proximate cause of the fatality or proximately contributed thereto. So the case is within the field of jury duty and the trial court clearly erred in deciding otherwise.

*By the Court.*— The judgment is reversed, and cause remanded for a new trial.