Lehigh Valley R. Co. v. Beltz, 45.

• Decision Date: 02 November 1925
• Docket Number: No. 45.,45.
• Citation: 10 F.2d 74
• Parties: LEHIGH VALLEY R. CO. v. BELTZ.
• Court: U.S. Court of Appeals — Second Circuit

10 F.2d 74 (1925)

LEHIGH VALLEY R. CO. v. BELTZ.

No. 45.

Circuit Court of Appeals, Second Circuit.

November 2, 1925.

Alexander & Green, of New York City (Clifton P. Williamson, and H. S. Ogden, both of New York City, of counsel), for plaintiff in error.

Humphrey J. Lynch, of New York City (Sol Gelb, of White Plains, N. Y., of counsel), for defendant in error.

Before ROGERS, HOUGH and MANTON, Circuit Judges.

ROGERS, Circuit Judge.

This action was brought by plaintiff, as the administratrix of the estate of her deceased husband, to recover damages for his death. The defendant railroad company is a Pennsylvania corporation, which maintains its office and principal place of business in the Southern district of New York. The plaintiff's decedent was employed by the defendant as a conductor on one of its trains. At the time of his death, which occurred on November 15, 1920, he was in the employ of defendant and in charge of a freight train, which it is admitted was engaged in interstate commerce. While in the discharge of his duties he was riding in the cab of one of defendant's engines, when the main pin broke, causing the driving and parallel rods to fly about, disabling the engine and punching a hole in the boiler, causing a violent emission of steam, hot water, and coals of fire into the cab. Those on the engine jumped in an effort to save their lives. In so doing the plaintiff's intestate received fatal bodily injuries, from which he died. Two others also met their death.

The complaint stated that the action was brought under the federal Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. p. 65, as amended by the Act of April 5, 1910, c. 143, 36 Stat. p. 291 (Comp. St. §§ 8657-8665), and also under the Safety Appliance Act of March 2, 1893, c. 196, 27 Stat. p. 531, and the amendatory Acts of March 2, 1903, c. 976, 32 Stat. p. 943, and April 14, 1910, c. 160, 36 Stat. p. 298 (Comp. St. §§ 8605 et seq.). The complaint made no reference to the federal Boiler Inspection Act of February 17, 1911, c. 103, § 2, 36 Stat. p. 913 (Comp. St. § 8631), amended by Act March 4, 1915, c. 169, 38 Stat. p. 1192 (Comp. St. §§ 8639a-8639d).

The Boiler Inspection Act of 1911, in interstate or foreign traffic, made it unlawful to use any locomotive engine propelled by steam power "unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service. * * *" Comp. St. § 8631. And the act of 1915 extended the application of the act of 1911. Section 2 of the act of 1911 provides:

"That from and after the first day of July, nineteen hundred and eleven, it shall be unlawful for any common carrier, its officers or agents, subject to this act to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for."

The amendatory act of 1915 declared that the act of 1911 should "apply to and include the entire locomotive and tender and all their parts * * * and * * * appurtenances. Comp. St. § 8639b.

In the instant case the trial judge was of the opinion that the act made it the absolute duty to use only locomotives which are in all respects safe. If an unsafe locomotive should be used and injury resulted, the loss had to fall somewhere and Congress made it fall on the carrier, whether the latter was at fault or not. The acts, in his opinion, made the carrier "an insurer against all defects of its rolling stock." He refused to charge that "the mere breaking of this pin (in the locomotive) does not establish a violation of defendant's duties, under the so-called Boiler Inspection Act, as amended, or establish a cause of action in favor of plaintiff." He therefore instructed the jury that the only question of fact for them to consider was the question as to the amount of the damages.

The jury returned a verdict against the defendant in the sum of $25,000 — $15,000 for the widow of Beltz and $10,000 for his son. The amount of the damages which the administratrix was entitled to recover was for the jury to determine. A court of error cannot modify a judgment upon a verdict at common law on the ground that the verdict is excessive. Foster's Federal Practice, vol. 4, § 711, d. p. 3886. But in this case no claim is made that the amount of the verdict is excessive.

At the time of Beltz's death he was 43 years of age, his wife was 36, and this boy, the only child, was 2 years old. It was stipulated that, subsequent to November 15, 1920, the date of Beltz's death, the rate of pay for freight conductors of the class to which the decedent belonged was reduced from the regular rate of $6.96 a day to $6.32 a day; that that rate remained in force until April 1, 1924, when the rate was increased to $6.68 a day. But with the amount of this verdict we are not concerned.

The safety appliance legislation of 1893 and the acts amendatory thereof did not, in express terms, apply to locomotives, except that it was declared unlawful to use any locomotive engine, in moving interstate traffic, not equipped with a power driving wheel brake and appliances for operating the train brake system. With that exception, the remainder of the acts had to do with the equipment of the "cars." It was held that a locomotive engine is a "car," within the meaning of the second section of the act of 1893. Johnson v. Southern Pacific Company, 196 U. S. 1, 25 S. Ct. 158, 49 L. Ed. 363; Southern Railway Co. v. Crockett, 234 U. S. 725, 34 S. Ct. 897, 58 L. Ed. 1564; United States v. Philadelphia & Reading Ry. Co. (D. C.) 223 F. 213. But clearly a "locomotive" and a "car" are not the same for all the purposes of the Safety Appliance Acts. Davis, as Director General of Railroads, v. Manry, 266 U. S. 401, 45 S. Ct. 163, 69 L. Ed. 350.

There is no question here concerning contributory negligence or assumption of risk. The question of contributory negligence and that of assumption of risk do not arise, if a violation of section 2 of the Boiler Inspection Act contributed to cause the death of an employee. Baltimore & Ohio R. R. Co. v. Groeger, 266 U. S. 521, 523, 45 S. Ct. 169, 69 L. Ed. 419; Great Northern Ry. Co. v. Donaldson, 246 U. S. 121, 124, 38 S. Ct. 230, 62 L. Ed. 616, Ann. Cas. 1918C, 581.

There are numerous assignments of error, but they all depend upon the single question whether the Boiler Inspection Act imposed upon the defendant an absolute duty to keep its locomotive engines free from defects and absolutely safe to operate, so that the defendant became liable to its employees, injured by the failure to discharge that duty, although the defect or defects were not due to the defendant's negligence. In St. Louis Iron Mountain & Southern Ry. Co. v. Taylor, 210 U. S. 281, 295, 28 S. Ct. 616, 621 (52 L. Ed. 1061), the Supreme Court, commenting on the Safety Appliance Acts, declared:

"In the case before us the liability of the defendant does not grow out of the common-law duty of master to servant. The Congress, not satisfied with the common-law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that `no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard.' There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the Congress was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the law-making body. * * * It is quite conceivable that Congress, contemplating the inevitable hardship of such injuries, and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are in the main helpless in that regard. Such a...