"On the other hand, the defendant claims (that is, the railroad company) that Walsh was a member of this switching crew, as well as Jones and Wynn; that Walsh was the fieldman, Wynn was the headman on the train, next to the engine in switching, and Jones was the conductor and the foreman.

"The defendant claims that Jones took a position alongside of the lead, on the easterly side of the lead, several car lengths southerly from switch No. 4, where he could signal the engineer, and that Walsh was at switch No. 4; that Walsh was turning the switch, and, when Walsh gave Jones the signal that the switch was right, Jones communicated it to the engineer, and the engineer then took Jones' signal and operated the train.

"The defendant claims that Jones was not near the switch, did not operate it for that cut-out or switching of the seven cars, and had not operated it since supper time that night, but that Walsh had stood there by switch No. 4 and operated switch No. 4.

"The defendant claims on this particular cut-off of seven cars in question Jones was several car lengths distant, southerly, at a position where he stood to receive Walsh's signals from the switch, and that Walsh was at the switch and gave the signal for the train to come back to cut off seven cars on switch 5, and that Walsh failed to turn switch No. 4, and as he walked back in the field, through his own mistake, he came upon the track or near the track, and was run over and upon by the detached seven cars which were intended for 5, and through Walsh's mistake went in on 4; and the defendant claims that for that reason the accident, so far as anybody but Walsh is concerned, was wholly unavoidable, an inevitable accident, one that was attributable directly to his own mistake, and that Jones gave the signal that Walsh gave and the engineer relied upon the signal. The engineer could not do anything after the cars had been detached, neither could Jones, and they did not notice it until they had gone in the wrong switch; and for that reason, the defendant says, Jones and the engineer are entirely unblamable, that Walsh was entirely to blame, and it was his own oversight and negligence, and that therefore they are not in any manner to be held liable in this suit."

KUHN, J. (after stating the facts). There are 29 assignments of error, and the one which is chiefly argued, and upon which principal reliance seems to be based for a reversal of this case, is that the trial judge erred in denying defendant's motion for a new trial on the ground that the verdict is contrary to the weight of the evidence produced on the trial of said cause, and at variance with the great preponderance of the evidence. A consideration of this assignment of error has necessitated a careful study of the record, and it resolves itself finally into the question whether the testimony of the witness Wynn, who was a member of the crew on the night in question, should be disregarded, and the testimony of Jones, the conductor whose negligence, it is the plaintiff's claim, was the direct cause of the injury, should be accepted as a truthful statement of the facts surrounding the accident.

We think that the testimony of the members of the crew clearly establishes that on the night in question Walsh was engaged in performing the duties of what was known as a "fieldman." Jones, the conductor, testified with reference to these duties as follows:

"Q. Was Mr. Walsh performing any duties that night, the duties known as fieldman?

"A. Yes, sir.

"Q. What are the duties of a fieldman?

"A. Throwing the switches and coupling up the cars and setting brakes on cars.

"Q. Was he performing those duties that night? "A. All with the exception of putting the brakes on at that time."

The engineer, King, said:

"He was acting as fieldman at the time. The duties of fieldman are throwing switches for different cars to go in and opening knuckles so that cars will couple. That is done so that they will couple when they come together. A knuckle can be opened so that, when a car is swung against it, they will close, and the cars

will be coupled without a man being present at the coupling operation, and that is what I mean by opening knuckles; that is, throwing up the lever of the automatic coupler, so that, when the next car bumps into it, the coupling will close, and that was a part of Mr. Walsh's duties. *

*

Nelson, yardmaster, testified:

*

* *

"On that night of the accident, he was performing the duty of fieldman. He was performing these duties under the direction of Conductor Jones. The conductor and the fieldman always, as a rule, go together. They work together, and are generally together. The fieldman is ahead of the conductor and opens the knuckles, if there is any openings; that is part of his duties, to open knuckles, and if it becomes necessary to couple up cars, that is part of his duties."

Wynn, head switchman, testified that Mr. Walsh was not out on the lead at all; that he was in the field when he was killed; that he had talked with him in there as the train pulled back off track No. 4 just before the accident; and that Jones was at switch 4 when he gave the fatal signal.

It was the claim of Conductor Jones (who was acting that night for the first time as conductor of that crew) that he turned no switches during these operations; that he received the signals from Walsh to come back or go ahead, and transmitted the signals to the engineer. It is the defendant's claim that the testimony of Jones is corroborated by the physical fact that, where these switching operations took place, there was a curve in the track, and that it would have been impossible for the engineer to see Jones, because of the curve, if he had been at switch No. 4, as claimed by witness Wynn. The engineer, however, upon the witness stand, stated that, although he had testified before the coroner, his attention was never called to the question whether there was a curve in that track until he became a witness upon the trial in the lower court. An examination of the plat which

was offered in evidence by the defendant further discloses that the curve shown is very slight and was not such as to have obstructed the engineer's view to such an extent that he could not have seen up the lead track past switches 4 and 5.

A reading of this record shows that there are discrepancies in the testimony of witnesses for both plaintiff and defendant, and these discrepancies and apparent contradictions need not be pointed out here. The jury, who heard this testimony, and who saw the witnesses upon the witness stand, were in a better position to determine what testimony should be discredited than we are. The trial judge also had the advantage of seeing these witnesses on the stand, and in denying the motion for a new trial, alleging, among other reasons, that the verdict was against the weight of the evidence, had the benefit of this in making his determination, and had an excellent opportunity to judge of their truthfulness.

In the recent case of Druck v. Lime Co., 177 Mich. 364 (143 N. W. 59), this court, speaking through Mr. Justice STONE, said:

"The rule is well settled that this court will only reverse a case upon the question of the weight of the evidence when the verdict is against the overwhelming weight of the evidence. The verdict must be clearly against the great weight of the evidence to require this court to overrule the decision of the circuit judge in refusing a new trial. "Gardiner v. Courtright, 165 Mich. 54, 62 (130 N. W. 322); Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592). We cannot say that the verdict in this case was against the overwhelming weight of the evidence, in the light of the record."

This rule has been repeatedly announced by the court, and we therefore conclude in the instant case that it cannot be said that the circuit judge abused his discretion in refusing a new trial on the ground

that the verdict was against the weight of the evidence.

It is also contended by appellant that, even if the testimony of Wynn is to be believed, the act of Jones in omitting to turn the switch was not a negligent act for which an action would lie, for the reason that an injury to Walsh could not have been reasonably anticipated as a result of the act.

The facts in the recent case of Evans v. Railway Co., 181 Mich. 413 (148 N. W. 490), are in many respects very similar, indeed, to the facts in the case now before us. In that case, the action was brought under the Federal statute by a car repairer who was working on a track which was attached to a lead track, and cars had to be shunted in and off this. lead track by the opening and closing of switches; and, while he was working on one of these tracks, the switch was opened and a car thrown in on that track, and he received injuries, from which he died the day after. The only key that would open the switch was found in the possession of the assistant foreman, and it was held that the act of the assistant foreman in opening the switch and throwing the car in on this track, where the deceased was working, was an act of negligence, for which the defendant was liable. We can see no difference in principle between that case and the case at bar. Mr. Justice MOORE, speaking for the court in that case, said:

"The respective rights of employers and employed under the Federal statute involved here, and its various amendments, have received the careful attention of the Federal courts, and full discussion may be found in Second Employers' Liability Cases, 223 U. S. 1 [32 Sup. Ct. 169, 38 L. R. A. (N. S.) 44]; Michigan Central R. Co. v. Vreeland, 227 U. S. 59 [33 Sup. Ct. 192, Am. & Eng. Ann. Cas. 1914C, 176]; St. Louis, etc., R. Co. v. Hesterly, 228 U. S. 702 [33 Sup. Ct. 703]; Central R. Co. of New Jersey v. Young, 200 Fed. 359 [118 C. C. A. 465]; Grand Trunk West