# Petition for Writ of Certiorari — Southern Railway Co. v. Bryan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0593%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 389 U.S. 827 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0593%3A1. Public record. Not legal advice.