(dissenting).
I think'the judgment below should be affirmed. As recognized in the majority opinion, there was substantial evidence supporting an inference that deceased was killed by a movement connected with the coupling and hauling away of the 17 cars. I think there was also substantial evidence tending to support a conclusion that defendant was negligent. Half an hour or so before the movement in question decedent told the assistant night foreman (who directed generally the movement in question) that he had found a Pennsylvania crippled car or cars. Decedent told the crew conductor who had immediate charge of the movement in question that one of the cars was “off center.” The conductor testified: “That means the trucks are off center. That sort of ear would be difficult to move. Something would have to be done to get that car in moving shape, if it was in that condition. But the inspector would not repair an off center car.”
While the meaning of this statement is somewhat ambiguous, I think the jury was justified in interpreting it as meaning that the off center car would need temporary repairs or adjustments of some kind before it could safely be removed to a repair track— that is to say, before moving it from No. 2 main. Such was the plaintiff’s theory of the case, as appears in its petition. The jury was thus justified in inferring that the conductor understood, or should have understood that decedent was intending to make some temporary repairs, corrections, or adjustments to the crippled ear while on No. 2 main, and before the contemplated movement, and that he should have anticipated the probable or reasonably possible presence of decedent under the crippled car, and should have taken precautions to discover whether or not decedent was so engaged — as I think the jury would be justified in inferring from the circumstances surrounding the accident was actually the case. There is to my mind no evidence showing that decedent had completed his investigation, or any evidence which it is open to us to assert would have warranted the men in control of the movement to assume that decedent would not likely be there at work.
I also think the jury would be justified in concluding that no sufficient or reasonable effort was made so to ascertain; for I think the testimony consistent with the view that the trainmen did not go ahead and look for workmen about the cars in advance of the coupling of each of the several groups or sections; and, whether or not there was any such duty by statute or rule, I think the jury would be justified in finding that such was the custom of the yard.
We are not justified in rejecting a given interpretation or inference by the jury merely because we think some other interpretation or inference more reasonable or better sustained by the evidence. The jury is the sole judge of the weight of the testimony and the credibility of witnesses. I also think that the record did not require a finding that decedent was negligent. The location in which decedent’s lantern and hook were found is not, *26to my mind, conclusive as to the direction of the fatal movement of the cars, or of the questions of negligence or contributory negligence. Not only is freedom from negligence presumed (Crucible Co. v. Moir [C. C. A. 6] 219 F. 151, 153), but under the testimony it was open to the jury to find that the “blue flag” rule had been abrogated (Pocohontas v. Johnson [C. C. A. 4] 244 F. 368, 372; Dahlen v. Hines [C. C. A. 7] 275 F. 817, 818, which was a “blue flag” ease).
The jury had the right to accept the testimony of the witness Boss, even had it been opposed to the testimony of all the other witnesses. I think the jury’s conclusion cannot be rejected as speculative. It is not necessary that it be supported by express testimony ; it is enough if the conclusion is within the fair contemplation of the jury “supported by the greater weight of probability.” L. & N. R. R. Co. v. Lankford (C. C. A. 6) 209 F. 321, 324, 325.
In view of the charge of the court, it should be presumed that the jury adopted the conclusion of fact heretofore referred to as permissible and as sustaining the verdict.