delivered the opinion of the court.
Mоore, the defendant in error, was in the employ of the plaintiff in error as a brakeman, and was desperately injured on June 9, 1910. His claim is thаt at the moment of the accident he was engaged in adjusting a defective automatic coupler on the rear end of the tеnder of an engine, which was started unexpectedly, causing him to be thrown from his feet by the steam hose equipment, which hung down to within a few inches of the surface of the track, and that, in part because the tender was not equipped with grab-irons or hand-holds, as required by the fedеral law, he fell helpless under the wheels and lost both of his hands.
He recovered a judgment in the trial court, which was affirmed by the Supreme Cоurt of Missouri, and the case is here on writ of erfor.
The applicability of the Employers’ Liability Act to the case was admitted from the bеginning, but nevertheless a petition was promptly filed for the removal of the case to the United States Circuit Court on the ground of diversity of citizenship. This petition was denied and the claim that this denial constitutes reversible error is now argued here, albeit somewhat faintly. The clаim is wholly without merit, as is apparent from the plain reading of the Federal Employers’ Liability Act and as is determined in
Kansas City Southern Ry. Co.
v.
Leslie,
It is claimed, with much apparent confidence, that no substantial evidence appears in the record to support the judgment of the state courts, аnd that under the authority of
Southern Pacific Co.
v.
Pool,
But chief emрhasis, perhaps, is laid in the argument upon the claim that the trial court erred in refusing to say to the jury, as a matter of law, that: “Any iron rod or irоn device securely fastened upon the end of defendant’s tender to which employees could conveniently catch hold while in the performance of their duties in coupling or uncoupling cars was a hand-hold or grab-iron within the meaning of the law,” and that, therefore, if the vertical iron hand-hold, and iron rod — pin-lifting or uncoupling lever — extending across the tender just above the coupler, were so designed and constructed as to permit employees engaged in coupling or uncoupling cars to readily grasp them for their bеtter security while in the performance of such work, the defendant was not guilty of negligence in failing to provide necessary and proper handholds or grab-irons and the plaintiff cannot recover for any injury sustained from lack of them on the engine tender.
The trial cоurt gave this request as the law of the case, but provided, only, the jury should find “that said attachments or devices furnished reasonable security to the employees of defendaht in coupling and uncoupling said tender and cars.” The railroad company excepted tо this modification of its request to charge and argues now that to so modify it was error.
We quite agree with the Supreme Court of Missouri in its conclusion that the giving of the company’s request, even as modified by the trial court, was error in its favor, being much more than it deserved under the law.
Sеction 4 of the safety appliance statute provides: “It shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with se *314 cure grab irons or handholds in the ends and sides of each car for greater, security to the mеn in coupling and uncoupling cars.” 27 Stat. 531. This statute was, in terms, made applicable to tenders of engines by the amendment of 1903, 32 Stat. 943, c. 976.
The request preferred is an obvious attempt to secure the application of the doctrine of equivalents to the Safety Appliance Act, and to persuade the court to say that it is not necessary for carriers to comply with the law if only they will furnish some othеr appliance which one jury may say is “just as good” but which another jury may say is not.
It is much too late for such a claim to be seriously entertained. In the case of
St. Louis, Iron Mountain & Southern Ry. Co.
v.
Taylor,
The exercise of сare, even the'greatest, in supplying and repairing these appliances will not excuse defects in them, — the duty and liability are absolute.
St. Louis, Iron Mountain and Southern Ry. Co.
v.
Taylor, supra; Great Northern Ry. Co.
v.
Otos,
The request to charge on which the plaintiff in error re *315 lies in its terms implies the absence of the required handholds or grab-irons, and an inspection of the photograph of the tender confirms the inference. The vertical handhold referred to in the request was at the comer of the tender and could be useful only to аman walking or running alongside the track to operate the uncoupling lever, or, as it is sometimes called, the pin-lifting lever. It could not bе of value when the automatic coupler was not in working condition or to a man in the position in which Moore was when injured.
This grab-iron requirement first appears in the Act of 1893 and the amendment ten years later (March 2nd, 1903) 32 Stat, 943, making the requirement in terms applicable to tenders did not change it. Whatever may be said of 1893, there can be no doubt that in 1903 automatic couplers, and therefore uncoupling оr pin-lifting levers, were in common, if not general, use, on the tenders of engines, and if Congress had intended them to be accepted as а substitute for hand-holds or grab-irons we must assume that the amendment of 1903 would have so provided. The statute requires both. If practical confirmation of this conclusion were desired it is to be found in the fact that in the order of the Interstate Commerce Commission standardizing safety aрpliances, under the Act of Congress of April 14, 1910, 36 Stat. 298, two rear end hand-holds are required on locomotives “one near each sidе on rear end of tender on the face of the end sill.”
It is not admissible to allow such an important statutory requirement to be satisfied by equivalents 'or by anything less than literal compliance with what it prescribes. The charge as given being more favorable tp the company than it deserved, the judgment of the Supreme Court of Missouri is
Affirmed.