Reply Brief for Respondent — Southern R. Co. v. Lunsford

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7— Court of the United States

: - OCTOBER TERM, 1935

| No. 399

e SOUTHERN RAILWAY COMPANY, Petitioner,

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OLIVIA COX LUNSFORD, Administratrix of the

Estate of J. M. Cox, Deceased, Respondent.

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€ REPLY BRIEF FOR RESPONDENT

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REUBEN R. ARNOLD,

B. P. GAMBRELL, _

T. D. ARNOLD, ;

Attorneys for Respondent.

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Address: Atlanta, Ga.

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WHICH FOLLOWS

Defendant’s brief erroneously claims witness Lunsford

only testified to track condition two months after acci- |

dent. His testimony covers the condition on Sunday

after the accident Tuesday, February 14

Derailment itself evidence of defective condition of track

or rolling stock, and Georgia court justified in holding

verdict authorized by evidence on each count--.......-

Defendant's claim that suit was brought under Federal

Employers’ Liability Act and that hence Boiler In-.

spection Act could not be relied on, ‘answered, and it

is shown Boiler Inspection Act and all other safety

appliance acts may furnish grounds for recovery in.

suits brought under Federal een ial Liability

Law ,

Defendant's claim that pleadings do not specifically al-

lege a violation of Boiler Inspection Act, answered;

the facts are all set forth in the pleadings as to the

defective condition of the watchman, and plaintiff was

not required to set forth the provisions of law appli-

cable to the pleaded facts, as the court takes judicial

cognizance of the law...

As to defendant’s claim that fireman’s evidence was con-

sistent with the watchman working at the time of the

_ actual wreck, we say the record shows that fireman

said engineer put on the brake at final derailment and

that no member of the train crew ever felt the brake

go on at any time before the wreck and after the initial

derailment. Evidence on this subject discussed and

explained, and it is shown that if watchman were in.

functioning condition it would certainly have applied

the brake. within the seven-tenths of a mile after the

initial derailment:____..

_INDEX TO POINTS DISCUSSED IN THE BRIEF

PAGE

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INDEX TO POINTS DISCUSSED—Continued

PAGE

Defendant’s contention and -analysis of the testimony

of Goff and Madden, from page 22 through page 27,

answered, and it is shown that the physical evidence,

_ including photographs and drawings of watchman and .

. evidence as to the track and height of rail as well-as

actual facts testified to by Goff (and not his mere con- |

clusions), justified, if it did not require, a finding that

the watchman did not function because it was out of

condition

Defendant’s contention that the judge's charge was in-

. 6-7

accurate in using the expression “negligence” as to °

failure to comply with the Boiler Inspection Act and

as to the judge’s charge in taking this up as a separate

proposition from the charge of common law negli-

gence, answered, and it is shown that ordinary negli-

gence may be set up under the Federal Employers’

Liability Act in the same suit in which a violation of ©

the Safety Appliance and Boiler Inspection Acts is set

up; that the liability in each case depends upon differ-

ent principles, and that the judge can so charge, and

quoting a case under Georgia practice which is identi-

cal with this case.

Argument that the evidence showed the watchman would

not always work and as to slight ‘verbal inaccuracies

in the charge and as to verbal inaccuracies in the de-

cision of the Georgia Court of Appeals in this case, all

answered __... : 2 SOE AAT RE RD

Argument that if watchman had never been installed on

engine there would have been no liability, and that the

device merely failed to interrupt the natural sequence

flowing from the,derailment, and that future liability

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-INDEX TO POINTS DISCUSSED—Continued

PAGE

in derailment cases could be avoided by failing te in-

stall the watchman,—all answered... 10-11

- Rule 106 of Commission required inspection, before

each trip, of the brakes on locomotives and tenders to .

see that they were in safe and suitable condition; that

the brake valves should work properly in all positions;

that the supply of air is ample. This ruie applied to

this watchman, which was nothing but an additional

automatic use of the air brake... pease, “11-12

Plaintiff did not have to plead Rule 106 because the rules

_ of the Commission are required to be known by the

ourt and are as much taken cognizance of when prop-

er facts are pleaded to which they apply as is the

general law contained in the Act of Congress. It

also appears that Rule 102 requires inspection of every a

part of the engine________- Ss a. eS

Case of Chicago etc. Co. v. Murray, 40 Wyo. 324,

quoted on page 49 of supplemental brief, discussed,

and that case is strongly in plaintiff’s favor in holding

that a device not covered by the Commission’s rules is

still covered by the general language of the Boiler In- |

spection Act requiring it to be in proper condition (12-13-14.

Defendant admits in its brief on page 37 that if it failed

to keep the watchman in proper condition by the use

of ordinary care, that the common law might have ap-

plied to it and made it liable, and the answer to this

is that if the common law would apply to it, the pro-

visions of the Boiler Inspection Law equally apply to

all that the common law covered, and we quote author-

cnc, ch, {5 SERS Se LE Ta a 14.15

INDEX TO POINTS DISCUSSED—Continued

_ Pace

The case of Great Northern Co. v.- Donaldson, 246

U. S: 121, holds that failure of the Commerce. Com-

mission’s inspector to disapprove a particular feature

of construction which caused injury to an employee and

in not condemning them when inspecting them, did not

relieve the.carrier from liability for the unsafg con-

dition of such parts, under section 2 of the Boiler

: Pet .. scdiniamans de apedeubibicad 15-16

Conclusion of ‘reply brief as to claim that Commission

-. hes not acted on watchman._.________.... 16

TABLE OF CASES

B. & O. R. R. v. Groeger, 266 U.S. 528.

| Caha v. U.'S., 192 U.S. 211

Casarello v. U. S. 271 Fed. 486

Great Northern etc. Co. v. Donaldson, 246 U. S. 121...

Interstate Commerce Commission Rule 106

M. K. & T. Rwy. v. Wulf, 226 U. S. 570

Napier v. Atlantic etc. Co., 272 U. S. 605

Railroad v. Gotschall, 244 U. S. 66 |

US.C.A. Title 45, sec. 53, p. 379. -

W. & A. v. Townsend, 36 Ga. App. 70

Yonge v. Kinney, 28 Ga. 111 seus ebiimisdeniiicaeindeien

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Supreme Court of the United States

OCTOBER TERM, 1935.

No. 399

SOUTHERN RAILWAY COMPANY, Petitioner,

4

Vv.

OLIVIA COX LUNSFORD, Administratrix of the

Estate of J. M. Cox, Deceased, Respondent.

REPLY BRIEF FOR RESPONDENT |

This brief is in reply to defendant’s supplemental brief. |

_ Inccontending there was no evidence as to a bad condition

of the track at the point of initial derailment, defendant

* claims that witness Lunsford gave evidence. of a track condi-

tion two months after the accident, his testimony showing two

crossties in very bad condition, as see Exhibit E.

On page 6 of defendant’s brief it is said that the witness

Lunsford did testify that he visited the scene of the derail-

ment Sunday after the Tuesday on which the accident hap-

pened but defendant contends on page 6 of brief, “He gave

no testimony as to any defective condition of the track dis-

covered by him at either point on that visit.” The defend-

ant’s cantention is that the condition of the track Lunsford

‘ Was testifying about was on April 10, 1933, when the photo-

graphs were taken, Lunsford giving a full description of the

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defective condition of the ties on this trip. On page 55 of

the record Lunsford testified:

“The track and the ties and all were in substantially

the same condition when Orr took the photographs that

they were in when I went there Sunday.”

This makes Lunsford’s testimony as to the condition of the

track in April apply to the condition which he found there on

the Sunday: after the Tuesday (February Te) on which the

accident happened.

irveegeiiive of this evidence as to the condition of the track

shown by Lunsford and the various photographs, the derail-

ment ifself was evidence of a defect either in the track or

rolling stock.—See Yongé v. Kinney, 28 Ga., page 111.

When we consider the fact that expert trainmen, as shown

in our previous brief, testified that they had run over small —

rocks such’ as were found at this place, even without any de-

-railment, and when we consider the additional fact that the

credibility of the negro child was for the jury, we can see

that the Court of Appeals of Georgia and the Supreme Court

of Georgia, which refused to grant a writ of certiorari to the

' judgment of the Court of Appeals, had evidence ‘to sustain

the ruling that the evidence justified the verdict on both

counts, that is, on the negligent condition of the track, road-

bed and right-of-way, as well as on the defective condition of

the watchman.

Defendant on pages 19 and 20 of its brief sets forth the

averments in each count as to the watchman. The first count

relied both upon the defective condition of the track as negli-

gence and the defective condition of the watchman in failing

to stop the train after the initial derailment as a violation of

its duty under. the Locomotive Inspection Act. The second

count set forth that a rock caused the initial derailment and

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that after that the watchman, because of its improper con-

dition, failed to stop the train as it should have.

Defendant claims that the suit was brought under the Fed-

eral Employers’ Liability Act. We fail to see how this can

be of any benefit to the defendant. The Federal Employers’.

Liability Act gives a right of action, of course, to the desig-

nated beneficiaries through an administrator. It is not-con-.

fined to liability for mere negligence but recognizes that, the

carrier is liable for any negligence which causes injury to an

employee and that the employee will riot be held guilty of

contributory negligence or to have assumed the risks of his

employment if a violation of the statutes passed for the safety

of employees contributed to cause his death. U.S. C. A.

Title 45, section 53, p. 379. |

Referring to the Boiler Inspection Act in the Groeger case,

this court said on page 528-of 266 U. S.: |

“That act was passed to promote the safety of em-.

ployees and is to be read and applied with the Federal

Employers’ Liability Act.” : ;

On pages 18 and 19 of defendant’s brief it is alleged that

there was no allegation that failure of the watchman to func-

tion was a violation of the Boiler Inspection Act; that the

suit was brought solely under the F ederal Employers’ Lia-

bility Act, and on page 53, in attempting to reply to rule 106

which requires all brake valves to- work Properly in all posi-

tions, defendant claims there was no charge in the pleadings

of a violation of rule 106. |

In reply we state that the rules of the commission are taken

judicial cognizance of by the courts just as is the Boiler In:.

_ Spection Act itself. —See Caha v. U.S., 152 U.S. 2 11; Casa-

rello v. U. S., 271 Fed. 486, and Napier vy. Atlantic, etc., Co.,

272 U.S. 605. . —

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A pleader in Georgia (and everywhere elsé so far as we

know) is not required to plead the law but only to plead the

facts and the court will apply the applicablé law.—See case

of Gainesville, etc., Rwy. v. Vandiver, 141 Ga. 360, in which

the court said:

“When a suit is brought against a carrier by an em-

ployee on account of an injury sustained in the operation

of its locomotive and cars, all that is necessary for the

’ plaintiff to allege is a statement of the facts showing his

relation as an employee and the circumstances under

which he sustained his injury, showing negligence and a

right of recovery; and on the trial of the ‘case, if the

plaintiff shows a right to recover under any law of which

the court will take judicial cognizance, that law will be

applied.” | .

Also, in case of M. K. &.T. Rwy. v. Wulf, 226 U. S. 570,

the Supreme Court held that the court would take judicial

cognizance of the applicable law to a suit brought by an em-

ployee against a carrier and that even though the suit er-

roneously set forth the State law and claimed rights under

it, the court would ignore such claim and enforce the Federal

law if the Federal law were applicable.

On pages 21 and 22 of defendant’s brief the claim is made

that it is consistent with fireman Goree’s testimony that the —

watchman may have actually worked just as the engine turned

‘over, quoting Goree’s testimony: to the effect that Goree

thought the engineer put on the. brakes just at the final turn-

over; that he did not see him but heard the exhaust; that he

could not be certain whether the exhaust he heard was the

engineer or the little watchman.

As a matter of fact, there is no proof that any brake was

put on just before the final derailment. . The fireman only

thought the engineer put the brake on because he heard the

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exhaust, and the court knows that the engineer and fireman

both sit in the cab close together. It clearly appears that the

noise which the fireman heard was the engineer putting on the

brake, his testimony on page 54 being as follows:

‘When we struck the second switch to the left, I heard

a big noise; I knew something was wrong then; and as

quick as that, I heard the exhausf. You see, it is an ex-

haust; it comes out from the brake valve, that is where

you hear it at. When the engineer applies the guage,

that is when I hear that noise. I have heard that noise

before. I knew that was the engineer putting the air on,

I thought that was what it was; I cannot imagine any- -

thing else that it was; but by that time the engine was

pretty well off the track. When the brake was put on

by the engineer the front of it was already off the track.”

The fireman expressly testified that the exhaust which he

heard at the final turnover could not have been the exhaust

from the little watchman. On page 53 the fireman said:

‘“T couldn’t say that I saw him apply the brakes; I

just heard the exhaust like from the brake valve, that is

all. That exhaust could not have been the application of

the brakes from this little watchman; I don’t know aé it

would have been exactly the same noise, I don’t think it

would be’ quite that way.” .

It will be observed that the fireman was sitting in the same

cab with the engineewand the air lever in the engineer’s hand

took effect on the valve up in the cab and that is where the

fireman would have heard the exhaust. The exhaust fro

the little watchman was something like thirty or forty feet

in front and under the body of the engine, and it would not

look very reasonable that it could have been heard.

At all events, this hearing of the exhaust only occurred at

the time the engine finally turned over. The place where

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the little watchman should have functioned, if it had been in

order, would have been at the point of initial derailment.

None of the train crew felt any brake put on at all; neither

did Goree. The picture of the engine shows it turned com-

pletely over and must have been disconnected from the cars.

The breaking of the air brake line would cause an exhaust and

it is common knowledge would in itself put on the brakes, but

this all occurred at the time of the wreck.

But if the watchman were in functioning condition, why did

it not function somewhere in the seven-tenths of a mile after

the first derailment? It should have operated instantly when

the front trucks fell 634 inches to the crossties. Yet it failed

to operate for that entire seven-tenths of.a mile although

the conditions demanded its operation if it: were in good

condition.

The jury were amply justified in finding that it never oper-

ated at all anywhere and that the defendant, having inspected

it and tested it after the wreck and having produced no evi-

dence as to its condition, virtually abandoned any claim ,that

it functioned. :

On pages 22, 23, 24, 25, 26, and 27 of the brief opposing

counsel quote largely from Goff’s testimony. The facts testi-

‘fied to by Goff were all in plaintiff's favor. His claim that

the action of the watchman was at times uncertain related to

the effect of curves, which, of course, could have effect only

upon the lateral operation of the watchman. He said some-

times a curve would set the watchman (opposing brief page

23) but he agreed that a vertical drop would set it if it

dropped 2% inches, (see opposing brief page 23) and he

admitted the truck would drop the height of the rail hiicsis

is 634 inches. See record p. 77, 80, 81.

It was for the jury to evolve the truth out of all this vol-

uminous testimony.

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The photographs and drawings of. the watchman were in

the record and the jury could conclude that under the circum-

stances there was plenty of contact with the trigger in both

a vertical fall of the truck and in a side movement of the

truck to apply the watchman.

If any brake had been put on at all, either service or emer-

gency application, the whole crew, including the engineer,

would have knéwn it. It would have disclosed trouble and

would have resulted in a stoppage not only from the watch-

man itself but the engineer would have had opportunity also

to put on the brake. The air brake in emergency is accessible

even to the conductor and train hands, as a matter of common

knowledge. ; R

On page 27, after quoting Goff’s evidence and that of

Madden, the superintendent, opposing counsel argue that

that is all the testimony regarding Wright’s little watchman.

Counsel leave out entirely the photographs and the drawings

and the character of the track and the marks thereon.

No witness is bound ‘by all the conclusions and contradic-

tions of any witness put on the starfd, even though he may

put him up himself. The court can see that the plaintiff put

up one of the high officials of the defendant company. If

there is a conflict between his conclusions that the watchman

is an experiment and the facts which he details: as to its use.

for seven years-and its Presence on every passenger engine,

it is for the jury to decide on that conflict. There is no tech-

nical estoppel on anybody. We can argue ‘the truth from

whatsoever source it appears. There may be a fragment of

it from one witness and a fragment from another, and some

of it from physical evidence. There is no hide-bound rule

that either side must swallow whole any witness he may put

UP, No matter how it may-conflict with common sense or the

facts. :

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Beginning -on page 28 the defendant’s brief complains of

the judge’s charge i in general terms and says that plaintiff's

petition did not allege a violation of the Boiler Inspection

Act, and that the judge took this up as a separate proposition

from the charge of negligence.

’ This case was tried in the State court under the State

rules of pleading and practice.

Under the Federal Employers’ Liability Act, ordinary neg-

ligence may be set up and violation of the Boiler Inspection

Act or the Safety Appliance Act or similar Federal require-

ments may be set up. The liability, however, is dependent

upon different principles as to the violation of duty under the

general charge of negligence and under the Federal appliance

acts. B. and O. R. R. v. Groeger 266 U. S., p. 528—Chica-

go, etc., Co. v. Murray, 40 Wyo. 324.

In W. &-A. v. Townsend, 36 Ga. App. 70, this practice of

submitting separately these charges of negligence was ap-

proved and the charge of the judge below followed the

charge in this Townsend case. The court will see, under

headnote 5, that the court in that case charged the general

law applicable to negligence and the diminution of damages

because of the decedent’s negligence, and under headnote 6

the court held that as to the Federal Safety Appliance Act the

plaintiff could recover full damages irrespective of contribu-

tory negligence. In the statement of facts in this case the

court say:

‘In the first count liability was predicated on a viola-

tion of the safety-appliance act, jt being alleged that a

defective air-brake caused the brake-shoe to stick, heat-

ing a wheel, and thereby causing its collapse, with the

consequent derailment of the-train. The second count

was predicated upon negligence on the part of the de-

fendant, alleging failure to inspect and repair the brakes,

and misconduct on the part of the engine crew in failing

to stop the train,” etc. .

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It is argued that the device (watchman) did not always

work. That may be said of almost any device. But in this

case, with a sheer fall from the height of the rail, 6% inches,

there has never been any reply to the proposition that the .

trigger should have been forced down. There is no question

of curves in a sheer drop. At least this was a question for

the jury.

Slight verbal inaccuracies in the charge may be: found, as

shown on page 31 of opposing brief, where the judge told the

jury that if a device was only an experiment and it had not

been in general use on this railroad a sufficient length of time

to be a fixed device, and if its use was such that the decedent

could not rely on it, that then its failure to function would not

be negligence and the defendant would not be liable for its

failure to operate properly.

This word “negligence” in this connection as shown by the

context could mean simply a failure to operate properly. In

many of the decisions, and especially in one of the cases from

the Supreme Court quoted in our brief, namely the decision

of Chief Justice White in Railroad vy. Gotschall, 244 U. S.

66, the failure of this safety appliance to operate, under the

act of Congress, is called negligence, but it is a mere general

way of describing the failure to keep the appliance in proper

condition. |

The meaning of the judge was too clear to admit of any

doubt in this charge. There is no doubt that the judge

charged that as to this device there was an absolute require-

ment that it should be in proper condition. If there was any

error in charging that the ‘Yefendant must -be negligent. in

respect to it, it was an error in favor of the defendant and

not against the defendant. No defendant can complain of an

error in his favor. |

Verbal criticism on pages 32 and 33 is made of the decision

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of the Georgia Court of Appeals, it being claimed that after

quoting section 2 of the Boiler-Inspection Act and confusing

that as an amendment of the Federal Employers’ Liability

Act rather than an amendment of the Safety Appliance Aci,

the appellate court.said the duty to keep their locomotives

and all parts and: appurtenances thereof free from defects is

absolute. shel a

‘This latter proposition is the important and substantial

thing, and the Court of Appeals clearly decided the law when

they held that this appliance, being a part and appurtenance

of the engine, must be in proper condition at all times.

The court did not make any mistake in its reference to this

act except that it referred to the act of April 22, 1908, as

amended in 1911 and 1915, as the “Federal Safety Appli-

ance Act,” instead of “Boiler Inspection Act,” and then

quoted the language of the law (the Boiler Act) correctly.

What difference does it ‘make that the court did not call it the

Boiler Inspection Act?:. It is not now a mere “boiler” act but

‘is a locomotive act. The court referred correctly to the date

of the passage of the amendment, quoted its language cor-

rectly and referred to its correct place in U. S. C.'A. and

gave it the correct construction. —

The only error in the charge was in favor of the defendant

in submitting to the jury the question as to whether this device.

was an experiment. The uncontradicted evidence shows that

jt was not an experiment. No case can be found in the books

where a device, which is made a working part of all the pas-

stnger engines on a railroad, has been classified as an experi-

- ment rather than a part or appurtenance of the engine.

The: defendant’s argument beginning on page 35 of its

brief repeats the argument that if the watchman had never »

been on this engine the same accident would have happened

_and yet there would have been no liability.

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Defendant overlooks the proposition that it is given the

right to select its own type of locomotive; that it creates its

own standard of safety by the appliances which-it places on

its own locomotive; and that the Boiler Inspection Act, in re-

quiring all parts and appurtenances on the entire locomotive

to be in proper condition, applies to each particular locomo- ~’

tive of every type which the defendant has.

It is argued that the device merely failed to interrupt the

. natural sequence flowing from the derailment. So do we say

the air brake in the hands of the engineer merely fails to in-

terrupt the sequence, but if it were out of order there would

be liability. So does the pop-off’ valve fail to interrupt the

sequence from rising steam pressure, but there would be lia-

bility if it failed to work and the boiler: exploded.

The brief then suggests that in order to escape liability in

future cases for derailments of front trucks, all the defendant

would have to do would be to remove the little watchman and’

thus lower its standard of safety. : -

The employees and persons dealing. with the company

then would also know where they stood. Employees acquire

a right in the kind of instrumentalities which the employer

furnishes them. It is for their safety that these laws are

passed, and the laws say that whatever is on that engine as

a part and appurtenance must be in proper condition.

On page 60 of the rules (Rule 106) of the commission the

brake system of the locomotive is dealt with and the rule pro-

vides that it must be known before each trip “that the brakes

on locomotive and tender are in safe and suitable. condition .

for service; that ‘the air compressor or compressors are in

condition to provide an ample supply of air for the 3ervice in

which the locomotive is put; that the devices for regulating

all pressures are properly performing their functions; that

12

the brake valvés work properly in all positions; and that the

water has been drained from the air-brake system.”

The watchrhan was nothing but an automatic brake. It

worked on the same tir brake line that the engineer’s brake

handle worked on. This rule requires the entire brake to be

in good condition and defendant had made this watchman a

part of that hrake on the locomotive. It was required that

the brake valves work properly in all positions. Practically

the whole of the watchman was the brake valve because the

trigger which would be tripped was attached to that valve.

Defendant in its brief on page 53 complains that there was

no gharge in the pleadings of a violation of rule 106. .We

have already shown that the law and the rules of the com-

mission are required to be known by the court. We pleaded

that the watchman was in a defective condition and would

not function. We proved that the conditions were there

which would have made it function, if it had been in good:

condition. Thus we have a specific rule of the commission ap-

plicable to the watchman which was but a part of the brake

system of the engine, and we have also a general rule (102)

' which: applied to every part of the engine and required its

inspection.

Defendant quotes, page 49 of brief, the case of- Chicago,

etc., Co. v. Murray, 40 Wyo. 324, 277 Pac. 703, 706. That

was a case where an engineer used a reach rod which con-

nected with the sand box as a handhold to climb on the en-

gine. It was defective and he was injured. The railway

claimed that it was not being used as contemplated, that is,

as a mere lever but the engineer replied it was customary to

use it as a handhold in climbing. The court used the language

quoted in defendant’s brief. It appeared that the sand was

applied in two ways,—one automatically by an air compressor’

which moved the sand out pre essure, and the other was this

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particular rod which merely operied a valve and allowéd itto

come out by gravity. The court quoted the rule of the com-

mission and held in substance that rule 120 only applied to

the air compressor which removed the sand from the sand

dome. The court referred fo the removal of the sand by

the hand lever as customarily resorted to when the air sander

(the automatic air pressure apparatus) would not work and is

referred to as “‘an emergency or secondary method.” The

decision then proceeds to state that the hand sander is con-

trolled from the cab of the locomotive by a movement by

hand of a reach rod and said, after quoting rule 120, “But

the hand sander was only a secondary sanding apparatus,

and there was no evidence that the air satder was not in safe

and suitable condition and a sufficient compliance with the

rule.” The court then went ahead to say that the Boiler act

itself applied to the reach rod Of the hand sander for it was

one of the parts or appurtenances of the locomotive, the

court using the following language on page 706:

“But the reach rod of the hand sander was one of ©

the parts or appurtenances:of the locomotive which, by

section 2 of the Boiler Inspection Act, the carrier was

bound to keep in proper condition and safe to operate in

the service to which the same are put, and it becomes

necessary to inquire as to the meaning of those words in

their application to the case at bar.” .

The court, it will be thus seen, applied the general require-

ment of the Boiler Inspection Act to this hand sander,

_ although it was not covered by the rules of the Commission,

and the court, after the quotation just made, proceeded to

quote from the Groeger case as showing «hat the standard

as to being in proper condition and safe to operate, etc., was

not too indefinite to be applied. — |

The court, however, did réverse the decision below >on

the ground that the court below charged the jury that it was -

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14

the carrier’s duty to keep the reach rod hand sander safe for

use as a hand- hold, in climbing, if such use was reasonable,

the court holding that the carrier would not be required to

keep the rod in proper condition for such a use unless the

. carrier knew that the: rod was customarily used as a hand

hold or that it ought to have anticipated such use.

Defendant claims in its brief that with respect to the watch-

man the defendant might have been liable under the common

law for failure to exercise ordinary care,in keeping it in

repair, if the evidence had: justified such a finding. See de-

fendant’s supplemental brief p. 37. We say that this con-

tention by the defendant would require the court to apply

the standard of the Boiler Act and not the common law.

In the case of B. & O. v. Groeger, 266 U. S. on page 528,

this court said:

“By the last mentioned section (and section 2 of the

Boiler Act was the section which was being construed),

defendant was bound absolutely to furnish what before,

under the common law, it-was its duty to exercise ordi- °

nary ¢é careto provide.”

In the case quoted by the defendant of C. B. & Q. v. Mur-

ray, from Wyoming, reported in 40 Wyo.:324 and 277 Pac.

703, the court, on page 708 of 277 Pac. Rep., used the fol-

lowing language:

“The phrase ‘in the service to which the same are

put’, as contained in section 2 of the Boiler Inspection

Act, must be taken to mean the.service for which the ap-

pliance is designed, or to which it is put with the em-

ployer’s knowledge and acquiescence. The common law

duty to exercise ordinary care to keep appliances reason-

-ably safe for such purposes has, by the statute, become

an absolute duty t to keep them safe for the same pur-

poses.”

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15

Words could not better explain the fact that if the com:

mon law ever applied to this watchman, as the defendant in

its brief on page 37 admits is the case, the Boiler Inspection -

Act equally applies to it.

The defendant’s contention that failure of the Commission .

(and of course the court will understand it is our contention

the Commission has covered the watchman by rules 102 and

106) to require or deal with any part or device on an engine

relieves the carrier from the effect of the Boiler Inspection

Act is really squarely decided against the defendant by this

court in the case of Great Northern, etc., Co. v. Donaldson,

246 U.S. 121, in which a locomotive engineer was killed by

the explosion of a boiler, and it was contended that the engine

was not in proper condition under the Boiler Inspection Act

because of the use of crown bolts ‘with large button heads.

It was contended by the carrier that the Federal boiler in-

spectors, who acted under the Commission’s orders, did not

disapprove these ‘buttons when they inspected the engine, and

the Supreme Court made the following statement :

“Nor can we agree with the-contention of the plain-

tiff in error that, so long as the large button head had

not been disapproved by the government inspector, such

fact is conclusive of the sufficiency of the type in use.

We find nothing in the Boiler Inspection Act to warrant

the conclusion that there is no liability for an unsafe

locomotive, in view of the provisions of section 2 of the

act, because some particular feature of construction,

which has been found unsafe, has not been disapproved

by the Federal boiler inspector.”

The effect of the foregoing decision is to say that mere

negative action of the Commission, that is, failure to disap-

prove a feature of construction when inspected by the Fed-

eral boiler inspector, does not relieve the carrier for an un-

safe locomotive, under section 2 of the Boiler Act.

16

So we say a mere failure to cover all the parts of the loco-

motive by the Commission's rules does not approve either the

presence or the condition of other features of the locomotive

not dealt with. .

Surely it is not to be considered that as to those parts of

a locomotive as to which the Commission has made no re-

quirements, this statute allows them to be in dangerous con-

dition or not in proper repair.” The argument of the defend-

ant would lead to the result that there is no requirement as

to proper condition of any part of the locomotive unless the

Commission has: either designated its dimensions, contents

and architecture or required it to be inspected, or tested, and

this in the face of the proposition that this court, in all of its

decisions, has recognized that the Commission has not cov-

ered anything like the whole grqund as to parts and appur-

tenances of locomotives but instead the Commission has left

the main architecture of the locomotive and its type to the

‘discretion of the carrier and has provided in its own rules that

they are the minimum requirement and that the carrier is

encouraged to make its own rules in the interest of safety.

Respect fully | submitted,

‘REUBEN R. ARNOLD,

B. P. GAMBRELL, - ;

T. D. ARNOLD, |

Attorneys for Respondent.