275 F. 766 | 7th Cir. | 1921
Affirmance depends upon the application of the Boiler Inspection Act to the facts disclosed upon the trial. Assignments of error directed to the rulings on evidence, the charge to the jury, and the refusal to give requested instructions, as well as the motions for nonsuit and directed verdict, all assume, in part at least, the nonapplication of this act. This Boiler Inspection Act, as originally enacted, provided:
“See. 2. 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 tost or tests as may bo prescribed in the rules and regulations hereinafter provided for.” U. S. Comp. St. § 8(>31.
This section was amended in 1915, section 1 of the amendment reading as follows:
“Section two of the act entitled ‘An act to promote the safety of employees and travelers upon railroads by compelling common carriers engaged in interstate eorihneree to equip their locomotives with safe and suitafile boilers and appurtenances thereto,’ approved February seventeenth, nineteen hundred and eleven, shall apply to and include the entire locomotive and tender and all parts and appurtenances thereof.” U. S. Comp, St. 8039a.
_ _ This being our conclusion in respect to the application of this statute, the proposed instructions, dealing with assumption of risk and contributory negligence, rejected by the court, need not be discussed. Admittedly they were properly refused if liability could be predicated upon defendant’s failure to comply with the provisions of the Boiler Inspection Act.
True, there were counts in the declaration to which assumption of risk and contributory negligence were defenses. But the proposed instructions, the refusal of which is assigned as error, were intended to commit the court and the jury to a repudiation of the count or counts that predicated liability upon the defective bell .ringer. In fact, as the trial concluded, it became evident that defendant’s liability turned almost solely upon its failure to provide its engine with a workable automatic bell ringer on the night in question.
Likewise rulings upon evidence dealing with the bell ringer and its failure to work need not be separately considered, for the basis of each exception was the nonapplication of the statute to the facts disclosed.
But conceding the Boiler Inspection Act applied to and covered bell ringers, counsel insist that no actionable negligence is disclosed by the evidence, and therefore its motions, timely made, to take tire case from the jury, were erroneously denied.
Furthermore, the facts in this case show the utter insufficiency of the hand operated arrangement, constructed for emergency use by a fireman and placed on the fireman’s side of the engine cab. The fireman was on the ground attending to switches. It was in the night, and the engineer’s undivided attention was, or should have been, directed to the operation of the engine, which necessitated his keeping a lookout for signals. He neither did, nor could with dependability, operate the bell by a cord so placed as to be operatable by a fireman.
The judgment is affirmed.