MARTIN, Circuit Judge.
The Southern Railway Company has appealed from a judgment for $10,000 entered on a jury verdict for the appellee, David W. Hutchings, a twelve-year-old boy. The jury award was for personal injuries resulting from the boy’s being struck by a step protruding from a caboose of one of the appellant’s freight trains.
The issue presented is whether appellant was entitled, on the evidence, to a directed verdict in the district court. It is the contention of the Railway Company that the plaintiff failed to make a case for the jury under the Tennessee Statutory Precautions Act. Section 65-1208(4), Tennessee Code Annotated, the applicable section, provides that each railroad shall cause its crews to be always on the lookout ahead; and that if any person, animal, or other obstruction, “appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident.”
The question to be answered is whether there was any evidence upon which the jurors as reasonable persons could fina that the appellee appeared as an “obstruction upon the road” ahead of the train, within the meaning of the Statutory Precautions Act. It is undisputed that the crew of the train took none of the steps required by the Act. Therefore, if evidence was introduced from which the jury could reasonably find that the boy was an obstruction upon the track, then under the Act, since its provisions were not met, there would be no doubt of the railroad’s liability.
After careful consideration of the testimony, we think that there is substantial evidence from which the jury could have found that the boy was an obstruction upon the road within the meaning of the Act; and that it is proper for the case to have been submitted to the jury.
The Tennessee authorities, which are controlling, have defined what is meant by an “obstruction.” In Preslar v. Mobile and Ohio R. Co., 1916, 135 Tenn. 42, 185 S.W. 67, it is stated that such an obstruction must be “within the sweep of the train”; and, in Gaines v. Tennessee Central Railroad Co., 1940, 175 Tenn. 389, 135 S.W.2d 441, the Supreme Court of Tennessee held that such “obstruction” must be an object appearing on the track in front of a moving train, or so near the track that the object will be struck by the moving train. This court held likewise in Louisville & Nashville R. R. v. Farmer, 6 Cir., 1955, 220 F.2d 90. It was the plaintiff-appellee’s burden, moreover, to show that he had become an obstruction ahead of the train where he could have been observed by the train’s crew.
In Gajda v. Reick-McJunkin Dairy Co., 6 Cir., 18 F.2d 279, 280, our court thus stated its position in considering the propriety of a directed verdict for the defendant: “In determining the propriety of the directed verdict for defendant, we must take that view of the evidence, and the inferences reasonably and justifiably to be drawn therefrom, most favorable to the plaintiff, and determine whether or not, under the law, a verdict might be found for the plaintiff. * * * Neither we nor the trial judge can rightly pass upon conflicting testimony, or determine the credibility or preponderance thereof.” This rule has been repeatedly recognized.
In the instant case, it is true that there is no testimony which clearly and unequivocally places the boy on the track. Nor does the testimony in terms of feet and inches place him “within the sweep of the train.” However, it is our opinion that the testimony of David Hutchings, “and the inferences reasonably and justifiably to be drawn therefrom,” constitute evidence from which reasonable men could find that David was so near the track that he would have been struck by the moving train and, therefore, was “within the sweep of the train.”
David testified that he was going up the path by the tracks as the train was coming down toward him. This places him in front of the train. The path is right beside the crossties. From photographs in evidence, it appears that the path is bordered on one side by thick and high undergrowth and on the other by the crossties. This would confine the boy, while on the path, to an area immediately next to the track. We think it is not an unreasonable inference that the jury could have found, in reaching a verdict for the plaintiff, that, at the time the train was coming down toward him and at a time when the crew by the exercise of due care should have seen him, the lad was actually within such proximity to the track itself that he would have been struck by the moving train.
The record contains conflicting evidence, especially in the testimony of the train crew. However, in considering an appeal on the question of the propriety of the denial of a directed verdict, it is not the province of the court to consider the weight or preponderance of the evidence. In such posture, the function of the appellate court is to consider the evidence in the light most favorable to the plaintiff. This being true, the case should have been submitted to the jury under appropriate instructions — the course followed by the district judge.
Accordingly, the judgment entered on the verdict of the jury is affirmed.