This suit, commenced in a state court, was removed to the circuit court of the United States for the Eastern district of Texas on the ground that the defendant was incorporated under the laws of the United States. The object of the action was to recover damages for a personal injury suffered by the plaintiff while engaged as a switchman in the employ of defendant. On the trial by a jury there was a verdict in favor of the plaintiff, and the judgment of the trial court entered on such verdict was subsequently affirmed by the circuit court of appeals for the the Fifth circuit. 41 U.S. App. 567, 21 C. C. A. 520, and 75 Fed. 802. To that court error was prosecuted.
The errors assigned are based entirely on the theory that the trial court erred in refusing to give to the jury certain instructions asked by the defendant, and that the court of appeals also fell into error in affirming the action of the trial court. To clearly understand the contentions of the plaintiff in error, it becomes essential to outline the facts.
The Texas Pacific and the Cotton Belt Railway Companies both had tracks entering the city of Shreveport. These tracks of the two companies were connected. A short distance off the line of the Texas Pacific there was a cotton seed oil mill, which was united by a spur track with the main line of railroad as it ran through a railway yard. The Cotton Belt delivered to the Texas Pacific two oil-tank cars, in order that they might be by the latter delivered to the oil mill, where they were to be filled, and then redelivered by the Texas & Pacific to the Cotton Belt to be carried to their point of destination over its line. The tank cars were placed by the Texas Pacific near the oil mill, on the spur track leading thereto. At a subsequent time,-there being conflict in the testimony as to how long a period intervened,-one of the tank cars having been filled with oil, the mill company requested that the loaded car be moved and the empty car be left on the spur track so that it might also be filled. To accomplish this purpose, an engine, with a box car, moved down the spur track to couple to the oil cars, so as to place the loaded one on the main track preparatory to delivering it to the Cotton Belt. The plaintiff, a switchman, was ordered to uncouple the loaded from the empty tank car. These cars were both fitted with an appliance by which, if in good order, the coupling pin could be removed by a lever without the necessity of the switchman going between them. This appliance, however, on the cars in question, when the switchman sought to use it, was found to be out of order, and he was therefore compelled to lean in between the two cars to draw out the coupling pin for the purpose of uncoupling,-an operation shown to be usually resorted to when necessary. As he was making this movement, his feet became entangled, and he was thereby suddenly exposed to the risk of being thrown between the cars, and to the danger of being crushed to death. The entanglement of the feet of the switchman was caused by a broken brake rod, with links of chain attached to it and a hook at its end, which was hanging down under one of the cars; and which, in the movement of the car, was projected out into the space between the two cars, and caught the feet and legs of the switchman as he leaned between the cars for the purpose of doing the uncoupling. In his effort to escape being thrown between the slowly-moving cars, the right arm of the switchman was caught between the drawheads of the cars, and was so badly crushed at the elbow that amputation was rendered necessary.