Page:Federal Reporter, 1st Series, Volume 9.djvu/355

 340 FEDERAL REPORTBB. �his employment, viz., as brakeman.in coupling cars on a freight train. The evidence at the trial was conaicting. It seems that the defend- ant railway, in the discharge of its duties, was accustomed to receive, couple, and haul on its trains cars belonging to other railroads whose bumpers or dead-woods and coupling appliances were different from its own; but that "a foreign car" of the P. E. E., of peculiar construction as to its dead-wood and couplings, was seldom received and placed in defendant's trains. "Foreign cars," sent forward by the P. E. E. road, differing from defendant's cars, yet differing from those of the P. E. E., were frequently hauled over the defendant road as part of the latter's trains. It was evident from the testiruony that different degrees of danger to operatives existed when one or the other of such foreign cars was used, and the testimony was in conflict as to which the foreign car was, which was introduced into the train in question. �At the close of the evidence defendant demurred, on the ground that the case, as fully presented, did not establish plaintiff's right to recover. • It is admitted that, even at the close of evidence offered on both sides, the court can instruct the jury that the plaintiff cannot recover; yet if there is conaicting evidence on which the jury should pass, the court cannot draw to itself the decision of what the evidence or the weight of evidence establishes. If this were not so the court would usurp the province of the jury. �It is contended in arrest that while the petition sets ont with par- ticularity the circumstances under which the accident occurred, it failed to state that the car in question was a "foreign car." ihe avermeut is that "while plaintiff, etc., was coupling a certain car, used," etc., the accident happened "through the negligence of the defendant in supplying to plaintiff said car, defectively and improp- erly constructed, and in failiag to inform plaintiff of the improper construction of said car; that said car was constructed in an unusual and improper manner, in that the dead-woods extended out too far, so as to render the work of coupling the engine to said car extremely dangerous," etc. The petition further alleges the unusually danger- ous condition of the train from placing therein such a car without notice to the employe, etc. �If this court accepts as a rule of pleading the views expressed in Leduke v. St. Louis e Iron Mountain R. Co. 4 Mo. App. 491, still this case would not fall withiu its purview. The plaintiff was not bound to aver that the accident was caused by the introduction of a "foreign car" into the train; and still further, if such a fact became material ��� �