Petition for Writ of Certiorari — Southern Railway Co. v. Bryan

a ,1F2Ts 9 .

eereS | ” UN 30 1907

ee eae, IN-THE : :

panes Court nf the Hnited States

OctosER TERM, 190t |

SI |

- SourHERN Ramway Company, Petitioner,

Vv. |

. Earn. Baran, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

_ UNITED STATES COURT OF APPEALS FOR THE

‘FIFTH CIRCUIT

» Cartes J. BLocH |

P. O. Box 4348

Macon, Georgia 31208

_ Tuomas B. Branoxw, IIT

- JoHun D..JonEs |

‘1240 Bank of Georgia Building

* Atlanta, Georgia 30303

Ricwarp 8, ARNOLD

300 State Line Avenue .

Texarkana, Arkansas

_ Counsel for Petitioner

Puess or Brron S. Apans Paria, Inc., Wasnineron, D.C.

=

”

Opinion Below ceeesesces @eeneeeseeaeeeeae (bbe e eet eeeees hy

Jurisdiction ........+++-- buen eevee (énabenaben poem

Question Presented ......... sade cdessseste pices. &

Statutes Involved ........ err sade cwewesigen Ce par

Statement .... Peceeveteeeeess weeeitoccocesesosaces, BF

Reasons for Grantiig the Writ ........... they 4

A. Tle Decision Below Conflicts: With Two Decisions Ee

of. Another Circuit hbo démbipneesecakadsanowss « 6

B. The Decision Below Deprives Petitioner of Its.

Right of Trial by Jury on the Disputed Factual

_ Issues of Violation and Proximate Cause ...... °8-

CR - nc cece ddesdcdeaceeneteehsabsccnereni oka ae

Appendix ea eS ies payee da

- Statutes Involved....... Se pe errr ere Avie ee

Opinion of the Court of Appeals pans ey eonwe oon ae

Judgment of the Court of Appeals ...... Naweseekune *% 2

ees CITATIONS |

, Cases:

Anderson v. Baltimore & O.R.R., 96 F.2d 796 (24 Cir,

BS RE ORS MR eg se Mh

- Givens v. Missouri-Kansas-T exas’ RR, 195 F.2d 225,

mandate amended, 196 F.2d 905 (5th Cir. 1952) . 9

' Great Northern Ry. v. ‘Otos, 239 U.S. 349 (1915) Sas 9

Tilly v. py aig W.R.R., 317 U.S. 481 (1943 Pn a Ah

Lyle v. Atchison, T4S,F.Ry., 177 F.2d 221 (7:

~~ 1949), cert. denied, Cade stig 913.(1950) ..... aes a 48

McCalmont v. P. 283 Fed. |

1922), cert. Tonieg, 260 U.S. 751. (1923) .. Sie

Rogers v. Missouri Pace. RB.R., 3520.8. 500 si 10

Southern Ry: v. Lunsford, 297 U.S. 398 (1936) .1.... 5

Cas 7 ee _— Continued | ve ei

, : : aoe i Se Page ’

eine & ‘P.Ry. v. “Rigsby AL. 4 33 (1018), preres

re st 2 NW Ry 2a a tk i),

. Tisneros 0 Ya» Des,

__ bent, ‘denied, 344 U.S. 885 (1952) ...........000 7,8

te ‘ 7 Sra , 2 .

7 Boiler Inspection Act, 2, 36 Stat. 913 (1911), as

amended, 46 USC. ta (aes oe b¥AGUUEs codes 2,4

Federal Employers’ Liabili 35 Stat. 65

__ (1908), as amended, 45 08 oot re 3

mtg Code §$-1254(1), 28 US.C. § 1254(1). (1964) .. 2

Act, § 36 Stat. 298 1910 A508.

» me hi 7 Rhos) oeweces 2 ph phy gone oe apneeiete

Safety ris ise) Ant §4, 36 Stat.. 299 (1910), 45 USC.

a th

| : IN THE |

Supreme Gort of the Wnited States

Ocroner TERM, 1967 '

No.

SourHern Rarway Company, Petitioner,

Ly a

é : Vv. s

_’ Baru N. Bryan, Respondent.

PETITION FOR A WRIT.OF CERTIORARI TO THE .

UNITED STATES COURT OF APPEALS FOR THE

ae \ FIFTH CIRCUIT

Petitioner prays that a writ of cortiotath issue to.

_ review the judgment of the United States Court of

Appeals for the Fifth Circuit, entered in the above-

entitled case on April 3, 1967.

OPINIONS BELOW -

The opinion of the Court of Appeals is cancel’ in

375 F.2d 155, It is printed in the Aippenitie: bs hereto, 3

beginning at p. 3a.

.

fA ER RS RRR I EET OO EMS NE RE RENE LS EN PET

be ’ "

3.

JURISDICTION -

The judgment of the Court of Appeals was visual

_onApril.3, 1967. App., p. Ta, infra. The jurisdiction —

of this Court i is invoked under 28 U. S. 0. é 1254(1).

‘QUESTIONS PRESENTED

ih Whether a derailed locomotive, found by the court

below to be A, ncaa by fire” and “‘inoperative,”’ was

being ‘‘used”’ “‘in.. , . active service’’ on petitioner’s

‘‘line,’’ within the seeming of Section 2 of the Boiler —

Inspection Act of 1911, 45 U.S.C. § 23. |

2. Whether the trial court unlawfully deprived peti- ”

tioner of its right of trial by jury by directing a verdict

agairist it on the disputed. factual issues of violation

and erica cause.. -— - 3 ;

STATUTES INVOLVED

The principal statute involved is Section 2°of the -

Boiler Inspection: Act of 1911, 36 Stat. 913,'as amended,

45 U.8.C. § 23. Also involved are Sections 2 and 4

of the Safety Appliance Act of 1910, 36 Stat. 298-99, ;

45 U:8.C..§§ 11, 13. Each of these statutes is printed

-- in the — hereto, beginning at p. la.

STATEMENT

On November 8, 1962, the locomotive and: several cars

of petitioner’s ‘passenger ‘train known as ‘““The South-

” erner’’ were involved in a crossing collision near Easta-

-boga, Alabama, derailed, and overturned. The locomo- :

_ tive came to rest on its. side.. It was.gutted by fire and

inoperable as a locomotive. . Respondent Bryan, a car-

‘man, was a member of a crew sent to rerail the locomo-

tive so that it could be taken to the repair ee. The

= ¥

crew had two boom’cars with which to lift the wrecked.

equipment back onto the traek. ; Cables from the boom

"+ @ats were attached by means ofa clevis to a lifting eye

or metal bracket on each erid of the locomotive, so that

the crane of one such car would be lifting the front

of the locomotive while: the crane of the other was lift-

ing the back.- Respondent attached one of the cables,

_ to the lifting eye on the back end of the locomotive. .He

then went to the other side of one ofthe boom cars to.

—.. watch. its wheels, in order to. make certain- that its -

_ wheels did ‘not raise up off the tracks during the lifting

operation. This lifting could be done in one of two

pe: ways: either. by picking up ‘the cables, or- by raising

up on the booms of the derricks. . The latter. method,

-ealled “‘booming,’’ was used on this occasion. The rear.

lifting eye broke while the locomotive was being lifted,

- the loosened cable backlashed, and a piece of its at-

: taching apparatus struck the respondent Bryan..

Respondent brought this action against Southern i in

the United States District Court. for the Northern

District of Georgia. His complaint was in two counts,

one alleging a violation of the Boiler Inspection Act

‘of 1911, 45 U.S\C. § 23, and the other alleging negli- -

gence "ander the Federal Employers’ Liability Act, 45_

US.C.. § 51. e case was extensively tried before a

jury. Among the disputed factual issues were whether |

the gutted:locomotive was being “‘used .. .:in active.

-. service’? on petitioner’s ‘‘line,’’ in order to bring: the

_ case within the liability-without-fault provisions. of

the Boiler Inspection Act, and whether respondent’s

injuries were proximately caused by a defect in the,

locomotive’s lifting eye, or by improper ‘‘booming.’’ —

At the close of the evidence the negligence ‘count was

withdrawn, and each side moved for a directed verdict

; 4 : a iS

.on the Boiler Inspection Act count. Respondent’s mo-

tion was granted, and petitioner’s denied. The jury | - |

was instructed that Southern was liable as a matter of

law, and only the question of damages was ‘submitted’

- to them. The judgment entered on their verwiet was

affirmed by the court below. _

’ REASONS FOR GRANTING THE WRIT

‘The Boiler Inspection Act, enacted in 1911, provides,

- in pertinent part: —

“Tt shall be unlawful for any carrier to use or

permit to be uséd on its line any locomotive unless

said locomotive, its boiler, tender, and all parts

and par hn ay pena thereof. are in proper condition

to operate in the service to which the same |

are put, that the same may be employed in the ac-

tive service of such carrier vanes unnecessary

peril to life and limb .

As this. Court ccphiuaa in Lily v. isis Trunk:

W.R.R., 317 US. 481 (1943), the liability created by

this statute does not depend on negligence or any kind

of fault. If the conditions of the statute’s applicability

are met, and if a violation has proximately caused in-

_ jury, then the carrier involved must respond in dam-

_ ages, no matter how rep sonable or careful its conduct

_ ‘tmaay have been. Precisety because the liability at stake

here is absolute, the statute must be carefully con-

strued to ascertain the circumstances under which Con-

gress wished to change the general rule of liability for

negligence only. The statute plainly provides that.

there can be no liability unless three distinct require- —

-ments are met: (1) the locomotive must have been

‘‘used’’ by Southern; (2) this use must have been ‘‘on

- - its (Southern’s) line’; (3) this use must have. been

* “in the active service” of Southern.

. .

ROTEL EO ERI IEE AE RN he a ESET LEN NT —

ices Sint

| Rae 2

Further, the Boiler Inspection Act must be carefully |

distinguished from the broader and more generally

applicable Safety Appliance Act. The latter statute

is not limited to ‘‘use.’? It forbids, in Section 2, 45

U.S.C. § 11, any carrier “‘to haul, or permit to be hauled

or used on its line, any car’’ not equipped as required ~

by law. Not only use,:‘but also hauling, may violate the

Safety Appliance Act. That act, moreover, applies .

to ‘‘cars,’’ and not, as in the case of the Boiler Inspec- ©

tion Act, to “‘locomotives’’ alone. And finally, the

Safety Appliance Act says nothing about ‘‘active serv-

ice.”? The contrasting language of that statute, which

was already on the books when the Boiler. Inspection

Act became law,. thus illuminates how narrowly Con-

. gress has circumscribed the latter enactment. A car

which is being ‘‘hauled’’ may, without more, violate

_ the Safety Appliance Act. Not so of locomotives. Even

_ if the locomotive here involved was being “‘hauled” at

_ the time of the accident, the judgment below is in error.

In order for respondent to prevail, the locomotive must

have been ‘‘used,”’ and, beyond that, it must have ' been

‘*in the active service of ”” Southern,

With this indisputable statutory background i in mind,

a moment’s reflection is sufficient to show. that the court

below manifestly erred. A locomotive that is, in the

Court of Appeals’ own words, “‘gutted by fire to the

extent that it was inoperative as a locomotive’? (App., ’

eS ° 4a infra), cannot be in use. Nor can it be in active

service. Its condition is the very antithesis of use-or

service.’ Indeed, it may be doubted whether such a

mags of metal may properly he called a ‘‘locomotive’’

at all.’ It is difficult to i imagine facts that more clearly

1 Farther, it is at least doubtfal that the lifting eye, which is never used

when the locomotive is ‘‘in active service,’’ is a ‘‘part or appurtenance’’

within the meaning of the. Boiler Tnepection Act. Cf. Southern Ry v. aasiaiaie

297 U.S. 398 (1936).

6

fail to satisfy the provisions of the Boiler Inspection

Act. Southern’s motion for directed verdict should

have been granted. The Court of Appeals’ failure so

to rule was apparently attributable to its confusion of

the Boiler Inspection Act with the Safety Appliance

Act. Both of the cases cited in the crucial portion of

its opinion, Texas & P. Ry. v. Rigsby, 241 U.S. 33

(1916), affirming 222 Fed. 221 (5th Cir. 1915), and

McCalmont v. Pennsylvania R.R., 283 Fed. 736 (6th -

Cir. 1922), cert. denied, 260 US. 751 (1923), arose

under the Safety Appliance Act, which, to repeat, has

nothing to do with this case. The distinction between

‘the two statutes is nowhere made clearer than in the

Court of Appeals’ opinion in Rigsby itself:

: “The hauling of . . .'a car over the line of . :

- earrier is within the prohibition of the (Safety

- Appliance Aet) ..., though that movement does

not constitute a use of the car . PO 222 ‘Fed.

at 222. ;

That the decision below was wrong is sak petitioner .

realizes, always a sufficient reason, of itself, to justify.

a claim upon this Court’s limited time. But here the

error is so plain, and the corpus of federal railroad

law which it distorts so central to the public interest in:

a sound transportation system, that an exercise of in-

formed discretion will surely lead to a grant of cer-

tiorari. There are, in addition, two particularly com-

pelling reasons for such action: a clear conflict between

circuits, and a violation of the cherished Tight of trial

by jury.

A. The Decision Balow Conflicts With Two Decislons of

| : Another Circuit

The decision below i is in direct conflict with two de-

cisions of the Seventh Circuit under the Boiler Inspec-

awncr

7

: tion Act. In the first, Lyle v. Atchison, T. & S.F. Ry.,

177 F.2d 221 (‘7th Cir. 1949), cert. denied, 339 U.S. 913

(1950), a locomotive had completed its run and was

being cleaned ‘and serviced by plaintiff, a hostler’s

helper. After finishing his work, plaintiff was climb-

ing down a ladder on the side of the locomotive.. He

slipped and was injured. Violation of the Boiler In-

spection Act was claimed on the ground that the loco-

motive’s ladder was wet or oily... The Court of Appeals

ti held, as a matter of law, that. the locomotive was not

in use at the time .of the accident, and: that the trial

court should have. directed a verdict in favor of the

carrier.. The court said, in language applicable here:

“Liability under the Act in question . . . depends.

not upon negligence but isan absolute one to obey

the statutory requirements. For this reason Con-

_’ gress, obviously, . in consideration of the un-

conditional duty to have . . locomotives in such

condition as not to put in peril life' or limb. while

in use imposed ‘ay carrier, likewise limited

the absolute liabili . locomotives while in

use ‘on the line.’ ;

‘‘The simple siaiiiaes is, was the locomotive in

use? To beget sare we "think, there can be but

one answer. Clearly the use of the engine in trans-

portation had for the time being been abandoned ;

its use in commerce had come to an end. To

service an engine while it is out of use, to put it

in readiness for use, is the antithesis of using it.

To apply the mandatory liability in favor of one

who puts an engine in readiness for use is-to en-

large and extend the intent of Congress in enacting

~ the legislation.” 177 F.2d at 222-23.

To the same effect is Tisneros v. Chicago & N. W. Ry.,

197 F.2d 466 (7th Cir.), cert. denied, 344 U.S. 885

(1952), also an action under the Boiler Inspection Act.

8

There, an employee servicing an idle and inactive loco-

motive slipped and fell from an icy rung on its side.

As in Lyle, the Court of Appeals held that a verdict

should have been directed for the railroad. The opinion

pointed out that “‘the locomotive . . . had ended its

service trip’’; that the ‘‘engineer and fireman had left”;

and that ‘the engine (was) idle and not in operation.’’

197 F 2d at 467.. Such a locomotive, it was held, could -

’ not be in use, as required by the Act.

The standard applied by the Seventh Circuit in Lyle

_and Tisneros is wholly incompatible with that applied

by. the Fifth Circuit in this case. The repair. opera-.

tions being performed in those cases were just as much .

‘‘integral parts”’ of the “‘use’’ of a locomotive as getting »

the locomotive back on the track was in this case. The

truth is that placing an unusable locomotive back on.

‘a track, so that its lifeless hulk can be dragged to a

place of repair, is a lot farther from being “use...

in active service’? than were .the routine repair and

servicing operations involved in Lyle and Tisneros. If

there is a difference between those cases ahd this one,

it is that the instant case is an even clearer instance of

the inapplicability of the Boiler Inspection Act.

Certiorari should be granted to resolve this conflict :

between the Fifth and. Seventh Circuits.

B. The Decision Below Deprives Petitioner of Its Right of

ee

_and Proximate Cause |

- Even if the issue of ‘‘use . . in active service” were

not so clear, and even if -the District Court did not

err in refusing to direct. a verdict: for Southern, the

judgment below is still seriously in error: For the ©

trial court did not simply permit the jury to consider

the facts and return a verdict for respondent. It di-

9

rected a verdict for respondent, who had the burden of ©

proof, on the important substantive issues of violation

of the Boiler Inspection Act and proximate cause. —

Petitioner is ‘at the very least entitled to a new trial at —

which these issues may be passed on by a jury. _ :

' There was a sharp conflict in‘the evidence on these.

points. Respondent himself testified that “‘booming,””

the method used to raise the locomotive, was improper,

and that the use of. this method was what caused the—

* lifting eye to break -(R.-74, 75, 126-27). He further

~———testified that there was nothing wrong or defective

| about the lifting eye (R. 85). On his own testimony,

therefore, there was at. least an issue of fact as to —

whether the locomotive was ‘‘safe to operate,’’ and as

to what proximately caused his injuries. Even if the

primary, historical facts were clear and undisputed,

_ there was still a real dispute as to the inference to be

drawn therefrom.

’ Such questions are for the jury, in Boiler Inspection

. Act cases as in others. See, e.g., Anderson v. Baltimore

& O.R.R., 96 F.2d 796, 798 (2d Cir. 1938); cf. Great

Northern Ry. v. Otos, 239 U.S. 349 (1915) (Holmes, J.)

(proximate cause is for the jury in Safety Appliance

Act cases). The case cited by the court below to justify -

withdrawal of these issues from the jury, Givens v.

Missouri-Kansas-Texas R.R., 195 F.2d 225, mandate °

amended, 196 F.2d 905 (5th Cir. 1952), is actually to ©

the contrary. There was no question of improper op-

eration there, as there is here. And the issue of proxi-

mate cause did go to the jury. ve

This is not simply a question’ of fact, unworthy of.

this Court’s time and attention. Trial by J jury is guar-

-anteed by the Seventh Amendment and i is an ee

Pk aed ere hho RA, OR. , o t ’ ; ea

10

i part of the federal scheme of railroad-employee regn-

lation. This Court has been alert to protect this right.

It has been particularly vigilant to do so in\litigation — ae

between railroads and their employees. As the Court

said in ego v. Missouri.Pac. Re, 352 U. S. 500, 509

7 (198%) ¢ a |

“Cognizant: of the duty to effectiiate the inten-

tion of the Congress to secure the right-to.a jury

_ determination, this Court is. vigilant to exercise

its power of review in any case where it appears

that the litigants have been improperly a mien

of that determination.” . -

” CONCLUSION.

: "vor the foregoing reasons, this yetition for a writ of

certiorari should be granted. ~

Respectfully ‘submitted,

Cuan.es J. Boon

P. O. Box 4348

Macon, Georgia 31208

THomas B. Branog, III

JOHN D. JONES '

1240 Bank of Georgia Building ©

_ Atlanta, Georgia 30303

RicHARD S, ARNOLD

- 300 State Line Avenue

Texarkana, Arkansas |

eperyaey pp st Counsel for Petitioner

’ July 3, 1967.

la *

APPENDIX

Statutes Involved

7 § 23. Use of unsafe locomotives and eppurtenanow unlaw-.

ful; inspection and tests

- It shall be unlawful for any carrier to use or permit tok

used on its line any locomotive unless said locomotive, .its

boiler, tender, and all parts and appurtenances thereof are —

in, proper condition and safe to operate in the service to.

which the same are put, that the same may be employed in

the active service of such carrier without unnecessary peril

_ to life or limb, and unless said locomotive, its boiler, tender,

and all parts and appurtenances thereof have been in-

speoted from time to time in accordance with the provi-

sions of sections 28-30 atid 32 of this title and are able to

withstand such test or tests as may be prescribed in the. -°

rules and regulations hereinafter provided for. Feb. 17,

1911, c. 103, § 2, 36 Stat. 913; Mar. 4, 1915, c. 169, $1, 38

Stat. 1192; June 7, 1924, c. 355, § 2, 43 Stat. 659. :

§ 11. Safety appliances required for each car; “when hand

brakes may be omitted

“It shall be unlawful for any common carrier subject to

\ the provisions of sections 11-16 of this title to haul, or per- -

mit to be hauled or used on its line, any car subject’to the

provisions of said sections not equipped with appliances

_ provided for in said sections; to wit: All-cars must be

equipped with secure sill steps and efficient hand brakes;

all cars requiring secure ladders and secure running boards

shall be equipped with such ladders and running boards, and

all cars having ladders shall also be equipped with secure

handholds or grab irons on their roofs at the tops of such ©

ladders: Provided, That in the loading and hauling of long

commodities, requiring more than one car, the hand brakes

may be omitted on all save one of the cars while they are

thus combined for such purpose. Apr. i, 1910, ¢. 160; -_ -

36 what: atell

2a

§ 13. Penalty es using car not equipped as provided; haul-

ing car for repairs where equipment becomes de-

fective; liability for death or injury of en use

of chains instead of drawbara

common carrier subject to sections 11-16 of this

title using, hauling, or permitting to be used or hauled on

its line, any car subject to the requirements of said sec-

- tions. not equipped. as provided in said sections, shall

be liable to a penalty of $100 for each and every such

_ violation, to be recovered as provided in section -6 of

this title: Provided, That where any car shall have been >

properly equipped, as provided in sections. 1-16 of this

title, and such equipment shall have become defective or in-

secure while.such car was being used by such carrier upon *—

its line of railroad, such car may be hauled from the place .

where such equipment was first discovered to be defective

or insecure to the nearest available point where such car

can be repaired, without liability for the penalties im-

posed by this section or section 6 of this title, if such move-

ment is necessary to make such repairs and such repairs

cannot be made except at such repair point; and such

movement or hauling of such car shall be at the sole risk

of the carrier, and nothing i in this section shall be construed

to relieve such carrier from liability in any remedial action

for the death or injury of any railroad employee caused

to such employee by reason of or in connection with the —

_movyement or hauling of such car with. equipment which is

defective or insectre or which is not maintained in accord- —

ance with the requirements of sections 1-16 of this title;

- and nothing in this proviso shall be construed to permit:

the hauling of defective cars’ by means of chains instead

of drawbars, in revenue trains or in association with other

cars that are commercially used, unless such defective cars.

contain livestock or “‘perishable’’ freight. Apr. 14, 1910, ©

*. @: 160, $4, 36 Stat, 299,

, stay . |

IN THE UNITED STATES COURT OF APPEAIS |

FOR THE FIFTH CIRCUIT .

No. 23,782

o

_ SouTHERN RalLway NE, Appellant, 7

a. ae Wi

. Barn N. Baran, Appellee.

| Appeal was the United States: District. Court ee | the fee

Northern District of Georgia

(April 3, 1967):

Opinion Below

Before Sonn Chief Judge, WIispom, Grom Judge, and

Brewster, District Judge. .

‘Brewster, District Judge: The railroad is deste

~ from a judgment rendered in favor of one of its employees

in an action for damages for personal injuries brought

under the Federal Employers Liability Act, 45 U. S. C. A.

51, alleging in separate counts a violation of the Boiler In-

spection Act, 45 U.S. C. A. 23, and common law negligence.

Tue overall question presented here is whether the *

issue of liability. under the count predicated upon the

alleged violation of the Boiler Inspection Act was settled

as a matter of law.’ Each party claimed that it was so

settled in his favor. The trial court agreed with the

employee, and the count on negligence was withdrawn.

i eae railroad was liable

as a matter of law, and Maen only the issue

as.to amount of damages. . insists that it

was entitled to judgment as a Ph a of law on such

count, and, in the alternative, that there were issues of “_

fact both as to violation and as to proximate cause that

made the action taken by the court reversible error. All

>.

4a

the controlling facts rw to these —- here in-

‘volved are undisputed. ;

On November 8, 1962, the locomotive ont several cars

of the railroad’s passenger train, known as ‘‘The South- |

erner’’, were derailed and overturned ‘in a collision at a

crossing near Eastaboga, Alabama, while the train was

enroute from Washington, D. C. to New Orleans. The

locomotive came to rest on its side, roughly parallel to the

tracks of the main line, but close enough to interfere with

rail traffic thereon. It was gutted by fire to the extent that

-it was inoperative as a locomotive. Bryan, a carman,

was a member of a crew that was sent.to the scene to re-

rail the locomotive and cars so that they could be taken ©

to the repair shops. The crew had two boom cars to lift the

wrecked equipment back on the track. Cables from the

‘boom cars were attached by means of a clevis to the

lifting eye or metal bracket provided for that purpose

on each énd ofthe locomotive, so that the crane on one

of such cars would be lifting the front while that on

_ _ the other was raising the back. When the locomotive

-was off the ground, the cranes could maneuver it into

position to be lowered to the tracks on, its wheels. The

‘employee, in accordance with instructions, attached one

of the cables to the lifting eye on the back end of the

locomotive, and then went to the other side of ore of the

boom cars to keep watch on its wheels to make certain that

they did not ‘raise up and come off the tracks during the -

lifting operation. The lifting could be done either by

picking up the cables or by raising up on the booms of

the derricks. The latter method, called ‘‘booming’’, was

- the one used on the occasion here involved. The lifting eye

on the rear broke while thé locomotive was suspended in

' the air, with the result that the loosened cable back-lashed-

and a piece of its attaching apparatus hit the employee

across the. back and injured him while he was down on

his hands and knees way the wheels of hs boom car.

5a

A careful consideration of the record has led us to the

conclusion that we cannot agree with the railroad’s con-

tentions that it is not liable as a matter of law on the

grounds that the locomotive was not in use on its line at

the time. of the injury, .that it was exempt from liability

during the ‘movement of the locomotive’from the point of .

disability to the nearest available point of repair, and that

the lifting bracket was not a part or an appurtenance of

the locomotive within the meaning of the Boiler Inspec-

tion Act. Where the hauling of a disabled or defective

railroad vehicle is-‘‘in progress or in immediate contem-

plation’’, McCalmont v. Pennsylvania Company, 6 Cir., 283

F. 736, 739 (1922), the handling of it for that purpose is

a part of its unitary journey.from the point of discovery

of disability to the repair shop. Texas & P. Ry. Co. v.

Rigsby, 241 U.S. 33, 36 S. Ct. 482, 60 L. ed. 874 (1915),

‘ affirming, 5 Cir., 222 F. 221. The fact that the Boiler In-

spection Act does not contain a reservation of remedial

actions for personal injuries similar to the one in Sec-

tion 13 of the Safety Appliance Act does not relieve.

the railroad from liability for injuries due to violations

thereof during transportation of. a locomotive from the

point of discovery of a violation to the nearest place of

repair. The reservation in Section 13 was made necessary

because of a provision therein for exemption from civil -

penalties that has no counterpart in Section 23. Getting

the locomotive back on the track in the event of derailment

was an integral part of its use, and the metal eye designed

to assist in that operation came within the broad. language

‘‘all parts and appurtenances” of Section 23.

The trial court correctly instructed the jury that lia-

bility was established as a matter of law. Givens v. M. K.

-&T. R: Co., 5 Cir., 195 F. 2d 225 (1952). Even if we were

to agree with the railroad’s argument that there was a

fact issue as to the existence of a defect that caused the

lifting bracket to break, there would still be no escape

6a

from the fact that the bracket did not comply with the re-

quirement of the Boiler Inspection Act that all-parts and

_ appurtenances of locomotives be ‘‘safe to operate in the .

service to which the same are put.’? The employee did not:

have to show the existence of a defect. His burden of es-

tablishing liability was-discharged when it was proved that

he suffered injuries as a proximate result of the failure

of the lifting bracket to perform properly in an intended

service for which it was being used. O’Donnell v. Elgin,

J. @ E. R. Co., 338.U.S. 384, 70 S. Ct. 200, 94 L. ed. 187

~ (1949); Affolder v. N. Y. Ch.-é. St. L. R. Co., 339 U.S. 96,

70 S. Ct. 509, 94 L. ed. 683 (1949) ; Givens v. M. K. &T. Ry.

Co., supra.. While the first two cases just cited involve

. violations of the Safety Appliance Act, the principle above

announced by them appligs with equal force to cases aris-

ing under the Boiler Inspection Act. All of the federal

safety laws in Chapter 1, Title 45, U. S. C., are in pari |

materia and must be. liberally construed in connection with

the federal remedy provided in Chapter 2 of such title to ~—

carry out their remedial and humanitarian purposes. Urie

. vy. Thompson, 337 U.S. 163, 192, 189, 69 S. Ct. 1018, 93.L. ed.

1282, 1299, 1302. The undisputed facts established the re-

‘quired causal connection between the violation of the Boiler

Inspection Act and the employee’s injuries under the test

laid down by Rogers v. Mo. Pac. R. Co., 352 U.S. 500, 77

S. Ct. 443, 1 L. ed. 2d 493 (1957), and later cases cited by.

this Court in Page v. St. L. S. W. Ry. Co., 5 Cir., 312 F. 2d

84 (1963). 7 ee ey Get, .

The judgment is AFFIRMED,

Ta

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIROUIT

| October Term, 1966

ee ts No. 28782: *

| D.C. Docket No. 9160-Civil Action

SourHern Rattway Company, squat,

v.

‘Bain N. Sinan Appellee.

Appea from the United States District Court for the

. Northern District of Georgia.

Before Tuttiz, Chief Judge, Wisvom, Circuit J udge, and

Brewster, District Judge.

Judgment | |

_ This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Georgia, and was argued by, counsel ; |

On ConsweRation WHEREOF, It is now herp ordered and

adjudged by this Court that the judgment of the said

District Court in 1 this cause be, and the « same is hereby,

affirmed. |

It is further ordered and adjudged that the appellant,

Southern Railway Company, be condemned to pay the costs

of this cause in ‘this Court for which execution may be is-

sued out of the said District Court.

| | April 3, 1967

‘ian as Mandate: April 25,: 1967