Baltimore & O.R. Co. v. Hooven

• Decision Date: 17 April 1924
• Docket Number: 3962.
• Citation: 297 F. 919
• Parties: BALTIMORE & O.R. CO. v. HOOVEN.
• Court: U.S. Court of Appeals — Sixth Circuit

297 F. 919

BALTIMORE & O.R. CO. v. HOOVEN.

No. 3962.

United States Court of Appeals, Sixth Circuit.

April 17, 1924

W. T Kinder, of Cleveland, Ohio (Tolles, Hogsett, Gin & Morley and King Tolles, all of Cleveland, Ohio, on the brief), for plaintiff in error.

R. B Newcomb, of Cleveland, Ohio (Skiles & Skiles, of Shelby Ohio, and Newcomb & Nord, of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON and DONAHUE, Circuit Judges, and SIMONS, District judge.

SIMONS District Judge.

There is presented the question whether the Safety Appliance Act covers the locomotive of an interstate railroad temporarily withdrawn from service and undergoing minor repairs in roundhouse in preparation for early return to service. The record shows that the locomotive came into the roundhouse the day before the accident for the purpose of undergoing its regular monthly inspection and for the making of certain running repairs. It is customary for engines brought into the roundhouse to be sprayed with oil for the purpose of conditioning them and protecting them from rust, the oil being washed off after the spraying process with warm water. The engine in this case was so treated, but the oil had not all been removed. Hooven, a machinist employed in the roundhouse, descending, after making minor adjustments on top of the boiler, slipped in stepping from the end of the steel running board, whereon oil had been left, and, being unable to save himself by clutching the hand rails, because they also were covered with oil and slippery, fell from the engine and was injured. At the time of the accident the engine was about ready for service, and was called to go out on the road shortly thereafter. From a judgment for Hooven, hereinafter called the plaintiff, the railroad, hereinafter called defendant, brings error. ^[1]

By section 2 of the statute, as amended in 1910 (Comp. St. Sec. 8618), it was made unlawful for a common carrier 'to haul, or permit to be hauled or used on its line any car subject to the provisions of this act not equipped with appliances' provided for therein. Among the safety appliances provided for by the statute are 'secure running boards * * * and * * * secure handholds or grabirons. ' The duty imposed upon interstate railroads by the act is an absolute and unqualified duty, both to install the safety appliances and to maintain them in a secure condition. Philadelphia & R. Ry.

Co. v. Eisenhart (C.C.A.) 280 F. 271; St. Louis, I.M. & S.R. Co. v. Taylor, 210 U.S. 281, 28 Sup.Ct. 616, 52 L.Ed. 1061; Chicago, B. & Q. Ry. v. U.S., 220 U.S. 559, 575, 31 Sup.Ct. 612, 55 L.Ed. 582; Delk v. St. Louis & San Francisco R. Co., 220 U.S. 580, 31 Sup.Ct. 617, 55 L.Ed. 590; Texas & Pacific Ry. v. Rigsby, 241 U.S. 33, 41, 36 Sup.Ct. 482, 60 L.Ed. 874; Minneapolis & St. Louis R. Co. v. Gotschall, 244 U.S. 66, 37 Sup.Ct. 598, 61 L.Ed. 995.

Not stopping to consider the argument of defendant below that a locomotive is not a car within the meaning of section 2 of the act, we come at once to the principal question presented by the record: Does the absolute liability of the railroad for the appliances and their security as fixed by the statute follow its instrumentalities of transportation beyond their actual present use or hauling, or, more specifically, is it the intent of the act to have the absolute liability imposed by it attach to the vehicle during such time as it is withdrawn temporarily from actual service and after it has reached the place of repair and is undergoing conditioning and repair for the purpose for which it is intended and for the use to which it is assigned?

It must be borne in mind that the test of liability for injuries proximately resulting from a violation of the Safety Appliance Act is not the engagement of the vehicle in interstate commerce, and the right of a private individual to recover for an injury resulting from a violation of this act is also not determined by the fact that at the time of injury such person was or was not engaged in interstate commerce. Southern Railway Company v. U.S., 222 U.S. 20, 25, 26, 32 Sup.Ct. 2, 56 L.Ed. 72; Texas & Pacific Ry. Co. v. Rigsby, supra.

The applicability of the act in specific instances and its constitutionality have been placed on broader ground than this, and the act is applicable to all vehicles used on any railroad which is a highway of interstate commerce, whether the vehicles themselves are engaged in interstate commerce or not. The safety to be secured by the act is the safety of the persons transported in interstate commerce and of those who are employed in such transportation, no matter what may be the source of the dangers which threaten it. Southern Ry. Co. v. U.S., supra. The test of liability under the Safety Appliance Act must not be confused with the test of liability under the federal Employers' Liability Act (Comp. St. Secs. 8657-8665). It is essential to a right of recovery under the latter act, not only that the carrier be engaged in interstate commerce at the time of the injury, but also that the person suffering the injury is then employed by the carrier in such commerce. Industrial Accident Commission of California v. Davis, 259 U.S. 182, 42 Sup.Ct. 489, 66 L.Ed. 888; Shanks v. Delaware, Lackawanna & Western R. Co., 239 U.S. 556, 36 Sup.Ct. 188, 60 L.Ed. 436, L.R.A. 1916C, 797. The cases just cited were relied on by the court below in holding the Safety Appliance Act applicable to the instant case. Both cases considered the test of liability under the federal Employers' Liability Act.

In actions under the Employers' Liability Act the statutory test is whether the employee of the interstate carrier is himself at the time engaged in interstate commerce; he is deemed to be so employed if he is working upon an 'instrumentality of interstate commerce'; and a car or engine is sometimes deemed to continue to be such instrumentality, even though it is not at the precise time active therein. In actions under the Safety Appliance Act the statutory criterion is whether the car is 'in use' 'on its line,' within the true purpose and scope of the act. The two tests are not synonymous, though it does not, of course, follow that, because the act has been held to extend to vehicles not themselves engaged in interstate commerce (Southern Ry. Co. v. U.S., supra), and its protection to cover employees themselves unconnected with interstate commerce (Texas & Pacific Ry. Co. v. Rigsby, supra), it may not be applicable to all vehicles and employees engaged in interstate commerce. Yet, when we regard the reasons upon which the broad extent of the act has been upheld and its constitutionality sustained, it is difficult to see wherein the safety of a highway of interstate commerce may be endangered by a locomotive withdrawn from service and at rest in a stall of the railroad's roundhouse undergoing repairs, even though such withdrawal be but temporary.

The act forbids the 'use' or 'hauling on its line' of prescribed cars. Whatever ambiguity lies in the statute results from the susceptibility of the term 'use' to an interpretation equivalent in meaning to the terms 'employ' or 'engage,' or the phrase 'habitually use,' as distinguished from the term 'use' as implying actual present use. Having in mind the broad aims and purpose of the statute and its specific provisions, we think there can be no doubt as to the meaning of its prohibitory clause. The statute imposes an absolute liability on the carrier to equip its vehicles with safety appliances and to keep such appliances secure. The act of equipping the vehicle originally with the safety appliances and the act of repairing an appliance which...