Mosco v. Baltimore & Ohio R.R., 86-2037

• Decision Date: 21 April 1987
• Docket Number: No. 86-2037,86-2037
• Citation: 817 F.2d 1088
• Parties: Lee A. MOSCO, Jr., Plaintiff-Appellant, v. BALTIMORE & OHIO RAILROAD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1088

817 F.2d 1088

Lee A. MOSCO, Jr., Plaintiff-Appellant, v. BALTIMORE & OHIO RAILROAD, Defendant-Appellee.

No. 86-2037.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 8, 1987.

Decided April 21, 1987.

Lawrence A. Katz (Joseph A. Coffey, Jr., Bala Cynwyd, Pa., on brief), for plaintiff-appellant.

Ranson J. Davis (H. Russell Smouse, Nancy S. Allen, C. Keith Meiser, Melnicove, Kaufman, Weiner, Smouse & Garbis, P.A., Baltimore, Md., on brief), for defendant-appellee.

Before PHILLIPS and ERVIN, Circuit Judges, and MERHIGE, Senior District Judge for the Eastern District of Virginia, sitting by designation.

ERVIN, Circuit Judge:

Plaintiff Lee A. Mosco, Jr., appeals from a judgment entered in favor of defendant Baltimore & Ohio Railroad ("B & O") in this case involving claims under the Federal Boiler Inspection Act, 45 U.S.C. Sec. 23 (1982), and the Federal Employers' Liability Act ("FELA"), 45 U.S.C. Secs. 51 et seq. (1982). Although we do not entirely agree with the reasoning of the district court, we affirm the judgment for the B & O for the reasons stated below.

Mosco was employed by the B & O as a locomotive engineer. He was injured when a rock, or some similar object, came through the open window of the locomotive he was operating and struck him in the head. Although the windows of the locomotive were made of shatter-proof material, they were not equipped with any protective screens, bars, grates or similar devices.

At the time the injury occurred, Mosco was approaching the Virginia Avenue Tunnel in Washington, D.C. He testified that he had been stoned by juveniles in this area on a number of occasions, and that he had reported these stoning incidents to the B & O. He further stated that on the day of the accident, he was operating the locomotive with its right window two to three inches open, in order to cool and ventilate the cab of the locomotive. As he approached the Virginia Avenue Tunnel, Mosco opened the window further to a width of about eight inches. He testified that it was necessary for him to open the window to check his ground speed, because the window was so dirty that he could not otherwise see out.

Before trial began, the B & O made a motion in limine to preclude Mosco from offering any evidence concerning the absence of screens, bars, grates or similar devices from the windows of the locomotive's cab, and to prevent Mosco from contending that the absence of such protective devices constituted a violation of the Boiler Inspection Act. The district court granted this motion and, at the close of Mosco's case, directed a verdict for the B & O on the Boiler Inspection Act claim. Mosco's FELA claim went to the jury, and the jury returned a verdict for the B & O.

Although Mosco makes numerous assignments of error, his primary contention is that the district court erred in granting the B & O's motion in limine and in later directing a verdict for the B & O on the Boiler Inspection Act claim. In our view, the district court acted properly in granting the B & O's motions in limine and for directed verdict, although we reach this conclusion for different reasons than those relied upon by the district court.

The Boiler Inspection Act prohibits common carriers by railroad from operating any locomotive unless the "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...." 45 U.S.C. Sec. 23. The Act also prohibits the operation of any locomotive that has not passed certain tests and inspections prescribed in the applicable rules and regulations. Id. The Federal Railroad Administration has promulgated regulations concerning locomotive safety standards and inspections. See 49 C.F.R. Secs. 200 et seq. (1986).

The Boiler Inspection Act imposes upon carriers by railroad an absolute duty to maintain their locomotives in safe and proper condition. Lilly v. Grand Trunk Western Railroad Co., 317 U.S. 481, 485, 63 S.Ct. 347, 350, 87 L.Ed. 411 (1943). Carriers that violate the Act may be held liable to employees who are injured as a result of the violation. See, e.g., Lilly, 317 U.S. at 485, 63 S.Ct. at 350; Green v. River Terminal Railway Co., 763 F.2d 805, 810 (6th Cir.1985).

In this case, the essence of Mosco's Boiler Inspection Act claim was that the locomotive in which he was injured was not safe to operate without screens, bars, grates or similar protective devices over the windows of the locomotive's cab. Mosco claimed that such protective devices were necessary to make the locomotive safe, because it was often necessary to operate the locomotive with its windows open.

We believe that the district court incorrectly apprehended the nature of the duty imposed by the Boiler Inspection Act in granting the B & O's motion in limine. The district court was of the opinion that a carrier cannot violate the Act so long as it complies with the applicable safety and inspection regulations promulgated by the Federal Railroad Administration. As the district court correctly noted, the B & O had complied with the regulation requiring safety glazing of locomotive cab windows. See 49 C.F.R. Sec. 223. The district court believed that the B & O's compliance with this regulation satisfied its duty under the Boiler Inspection Act. Accordingly, the district court excluded the evidence concerning the absence of screens, bars, grates or similar protective devices from the cab windows that Mosco intended to offer to prove a violation of the Boiler Inspection Act.

We disagree with the district court's rationale for granting the B & O's motion in limine. As other courts have observed, a carrier may violate the Boiler Inspection Act in one of two ways. First, it may fail to comply with the regulations promulgated by the Federal Railroad Administration. Compliance with these regulations is not, however, the only duty imposed by the Act. The Act also imposes a broader duty on carriers to keep all the parts and appurtenances of their locomotives in proper condition and safe to operate without unnecessary peril to life or limb. Thus, even if a carrier complies with the regulations, it may still violate the Act if the parts or appurtenances of its locomotives are otherwise unsafe. Contrary to the district court's view, "[t]he argument that there can be no violation of the Act absent a violation of some regulation or order of the ... Federal Railroad Administration is without merit." Herold v. Burlington Northern, Inc., 761 F.2d 1241, 1246 (8th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 208, 88 L.Ed.2d 177 (1985). Accord Whelan v. Penn Central Co., 503 F.2d 886, 890 (2d Cir.1974); St. Louis Southwestern Railway Co. v. Williams, 397 F.2d 147, 149-51 (5th Cir.1968); Calabritto v. New York, New Haven & Hartford Railroad Co., 287 F.2d 394, 396 (2d Cir.), cert. denied, 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 387 (1961).

This is not to say, however, that liability under the Boiler Inspection Act may be imposed in every case in which it is alleged that a carrier's failure to install some device on a locomotive rendered the locomotive unsafe. The Act imposes on carriers only the duty to maintain the parts and appurtenances of their locomotives in safe and proper condition, and the term "parts and appurtenances" does not include every item of equipment that conceivably could be installed on a locomotive. Rather, as the Supreme Court has stated:

Whatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of the Interstate Commerce Commission [now the Federal Railroad Administration], are within the [Boiler Inspection Act]. But mere experimental devices which do not increase the peril, but may prove helpful in an emergency, are not. These have not been excluded from the usual rules relative to liability.

Southern Railway Co. v. Lunsford, 297 U.S. 398, 402, 56 S.Ct. 504, 506, 80 L.Ed. 740 (1936); see also Marshall v. Burlington Northern, Inc., 720 F.2d 1149, 1152 (9th Cir.1983) (Lunsford interpreted "parts and appurtenances" "as encompassing '[w]hatever in fact is an integral or essential part of a completed locomotive, and all parts or attachments definitely prescribed by lawful order of the [Secretary] ...' ") (emphasis deleted).

From Lunsford, we derive the rule that a carrier cannot be held liable under the Boiler Inspection Act for failure to install equipment on a locomotive unless the omitted equipment (1) is required by applicable federal regulations; or (2) constitutes an integral or essential part of a completed locomotive. In this case, the bars, screens, grates or similar protective devices, which Mosco claims should have been installed over the windows of the locomotive's cab, are not required by applicable federal regulations. Thus, under the rule we have stated, Mosco would have a viable claim under the Boiler Inspection Act only if the omitted protective devices constitute an integral or essential part of a completed locomotive. In our opinion, they do not. Cf. Lunsford, 297 U.S. at 399-402, 56 S.Ct. at 505-06 (experimental safety braking device was not integral or essential part of a completed locomotive).

Because the B & O's failure to install protective devices over the windows of the locomotive...