ARMENIA

v.

WYER

GIBSON, District Judge.

Defendant, Trustee of The Long Island Rail Road Company, appeals from a District Court judgment awarding plaintiff, Peter J. Armenia, $21,000. after a jury trial in an action under the Federal Employers’ Liability Act, 45 U. S.C.A. § 51 et seq., for personal injuries sustained in the course of his employment as a yard brakeman.

Actually the situation in this case is unusual. The plaintiff’s amended complaint sought damages for two separate injuries which occurred in the early morning of April 16, 1952; the first injury being sustained about 1:00 a. m. and the second about half an hour later. The jury’s verdict awarded $1,000 to the plaintiff for his first injury and $20,000 for his second injury.

The first ground for reversal urged by the appellant is that the defendant’s motion to dismiss the first cause of action should have been granted on the ground that the plaintiff failed to show any injuries whatsoever as having been received as a result of the accident. It will be well to state at this time what the evidence in this case discloses as viewed, as it must be, by looking only to the evidence and reasonable inferences which tend to support the plaintiff. Wilkerson v. McCarthy, 336 U.S. 53, 57, 69 S.Ct. 413, 93 L.Ed. 497. Only where there is complete absence of probative facts to support the conclusion does a reversible error appear. Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916; Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615.

On the early morning of April 16, 1952, plaintiff was employed as a yard brakeman by The Long Island Rail Road Company at its 8th Street Freight Yard in Long Island City. This is an extremely large yard. Its terrain is such that at one end of the yard there is what is called the “hump.” This “hump” is a hill or a large place of high altitude. To this point freight cars are pushed. From this high point brakemen, under instructions, ride these cars, either singly or in larger groups, down from the “hump” on the momentum gained from the downgrade. At the bottom of this “hump” the yard fans out into twenty-three tracks. The general purpose of the “hump” is to there cut off, piece by piece, a train of cars that comes up the hill and then to classify the cars.

Thus, if in a train there were ten New York Central cars, five Pittsburgh and Lake Erie cars, and six Santa Fe cars, as these were ridden downhill they will be switched out onto the appropriate tracks so as to get all of the New York Central cars on one track, the Lake Erie cars on another track, etc.

Sometime about one o’clock in the morning of April 16, 1952, the plaintiff was instructed to go up onto this “hump” and ride a certain single boxcar down onto Track 16. He was given what is called a “clear alley.” In other words, he was told that the tracks were clear to the point where he would be riding that particular car. The plaintiff climbed on top of the boxcar and as he started down the “hump” he approached a switchman who had charge of throwing certain switches so that cars would be properly switched and tracks properly cleared. The switchman, realizing that a car had stopped on the track the plaintiff’s boxcar was approaching, as plaintiff approached yelled to the plaintiff, “Bail off.” The plaintiff thereupon let go of the brake on top of the boxcar, starting climbing down the ladder on the side of the car and when half way down, jumped. When the plaintiff jumped, he hit the ground very hard, with his hands and feet; his head jolted from the impact. In addition, he received a bruise on his leg. When he arose to his feet, he told a conductor nearby who asked how he was, that he felt all right to continue working.

Within a half hour thereafter, the conductor ordered the plaintiff and another brakeman to shove some cars down Track 9 to the end of the tracks. In this operation there would be an engine which would push four or five cars from the east end of Track 9 to the west end. Plaintiff accordingly climbed to the top of the most westerly car and took his position atop of the car, about at its center. He gave his signal by electric lantern to his fellow brakeman, Patterson, who was on the east end of these cars. He gave him a caution signal because of the poor visibility. It was a foggy, drizzly night. The engine then, on receiving Patterson’s signal, started to push and they were proceeding slowly. Plaintiff, during this proceeding, was standing on top, about in the middle of the westerly car on what is called a “catwalk.” As the cars were moving slowly, the plaintiff flashed another caution sign to Patterson, when all of a sudden he saw, about a foot in front of him, a low-hanging cable. The cable was perhaps three or four feet above the top of the car. Plaintiff tried to duck away from it, but it hit him on the head and he fell on his back on the top of the car, striking the back of his head on the catwalk.

At the west end of this yard, shortly before the Van Alst Avenue Bridge is reached, there are two cables which are stretched entirely across the twenty-three tracks in the freight yard. The upper cable is the permanent support for the lower or so-called “messenger” cable. The upper or so-called “permanent support” cable is anchored to steel poles located on the northerly and southerly sides of the freight yard. At 240-foot intervals along its length there are steel “droppers” that hang down and are attached to the lower or “messenger” cable. This “messenger” cable is anchored only to the steel pole on the southerly side of the yard. The northerly end of the “messenger” or lower cable passes over a sheave or pulley on the northerly pole and then extends down the side of the pole about fifteen feet, where there is attached to it a counterweight. This counterweight is designed to take up any slack or sag that may develop in this “messenger” cable. To this lower or “messenger” cable, telltales are attached. These telltales were supposed to be so hung as to strike one standing on a freight car in the face, thus warning him to duck for the approaching bridge. It was this lower or “messenger” cable that the plaintiff claimed suddenly loomed in front of him, that he tried to duck — but which hit him on his head and knocked him onto his back on the catwalk of the boxcar. About a month and a half before April 16, 1952, a freight train rammed into the steel pole on the southerly side of the yard, knocking it down. This pole was then promptly replaced and the whole system inspected and placed in proper working condition. This work was completed by March 5, 1952.

From this accident, or accidents, which occurred on April 16, 1952, the plaintiff suffered serious personal injury —a cerebral concussion with continuing headaches, dizziness, and blackouts. In addition, the plaintiff suffered incipient epilepsy and lack of ability to concentrate and serious damage to an optical nerve as a result of this accident, or accidents. This condition is of a permanent character.

1. The appellant’s first ground of error — i. e., that plaintiff proved no damage as a result of the first accident, cannot be sustained.

The evidence clearly indicates that the plaintiff, when he “bailed off,” struck the ground very hard; his head was jolted and he bruised a leg.

Furthermore, a well qualified physician who treated the plaintiff over a long period of time testified it was possible plaintiff received a cerebral concussion as a result of his “bail off” and that plaintiff definitely received a cerebral concussion from one of his accidents that morning.

The jury awarded the plaintiff $1,000 for the damages sustained in the first of two accidents. These damages, within limits not here exceeded, are not reviewable. Korte v. New York, N. H. & H. Railroad Co., 2 Cir., 191 F. 2d 86. There can be no question but what there was sufficient evidence as to this first accident upon which the jury might find that the defendant was negligent and that this negligence was a proximate cause of the plaintiff’s having to “bail off.”

2. Neither did the Court err in not dismissing the action based on the second accident on the grounds that there was insufficient evidence of actionable negligence to justify a verdict for the plaintiff. To recover under the Act, the plaintiff must, of course, show negligence. Moore v. Chesapeake & Ohio R. Co., 340 U.S. 573, 575, 71 S.Ct. 428, 95 L.Ed.