Page:Federal Reporter, 1st Series, Volume 10.djvu/726

 714 FEDERAL REPORTEU. �After you have considered the question of coutributory negligence, yoa will then inquire whether the braking (coupling?) was dono under the direction of the assistant yard-master, and in his presence, so that it was his duty to regulate the movements of the approaching engine. And here there is some confliot in the testimony, and a question of fact for you to decide. �It is elaimed by the plaintiff that the assistant yard-master, Mr. McCummings, was present and gave the order to do the coupling, and was there as the engine and tender approached the car, so that if it was coming at a rate of speed dangerously rapid he muet have seen it, and it was his duty to have given a signal to check or slacken the speed. On the part of the defendant the claim is thait Mr. McCummings gave a general order to the orew, of which the plaintiff was one, to make the coupling; that having given it he walked down the track and went off about his business in some other part of the yard, and that he was not present at the time the engine came down to be attached, &o that he was not directing the coupling, and that it was not his duty under such circumstances to notice the rate of speed at which the engine was approaching, or give a signal to check the engine if it was approaching too fast. �Of course you will inquire whether the engine and tender did ap- proach at an unusual rate of speed. If you find that it did not ; that it came up at a usual rate of speed ; and that everything was done in the usual way, — then there was no extraordinary peril, and no negli- gence on the part of the assistant yard-master, and no negligence on the part of ,the defendant, unless you find negligence on account of the absence of the link. But we will corne to that afterwards. But if you find that there was negligence in the manner in which the engine and tender were brought up to be coupled onto the freight car, then you will consider this question : as to wheLher Mr. McCummings was there present, and giving directions as to the manner of coupling, so that it was his duty to see what was going on, and give directions to check the speed of the approaching engine. If you find that he was there, and giving directions, and that his attention was directed, or ought to have been directed, to the approaching engine, and that he failed to give the proper direction to check its speed, and if you find that it was negligence on his part which resulted in injury to the plaintiff without any fault on the part of the plaintiff, then you will come to this question which I have stated to you: whether Mr. McCummings, the assistant yard-master, was within this rule which I stated, — that is, whether he was a fellow- servant engaged in the ��� �