Before CLARK, WATERMAN, and FRIENDLY, Circuit Judges.
Plaintiff, suing under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, and the Boiler Inspection Act, 45 U.S.C. § 23, recovered a verdict and judgment for $25,000 and costs for the injuries he sustained in the course of his work for defendant as a yard brakeman when he slipped and fell on sand and oil located on the platform of one of defendant's switching engines. Under the court's charge the jury was directed to find for the plaintiff if the defendant had been negligent or if it had failed to keep its locomotives in the safe condition required by the Boiler Inspection Act. Defendant now appeals on the grounds that there was insufficient evidence to support a finding of negligence under the FELA and that the FBIA does not impose liability for dangerous conditions created by the temporary presence of foreign matter on its locomotives.
We conclude that there was sufficient evidence to justify submission of the case to the jury on the issue of negligence. By his own testimony the yard conductor, on discovering plaintiff lying unconscious on the engine platform, noticed that sand and oil were present on the front end of the deck. Plaintiff testified that he saw sand in the area, and the fireman testified that he saw sand there in making his routine check of the engine prior to the accident. On this record the jury could find that the railroad, through its employees, either knew or should have known that a dangerously slippery condition existed in the area where plaintiff would pass in the course of his duties. Unless there is a complete absence of probative facts to support the conclusion reached, the jury verdict must stand. Korte v. New York, N.H. & H.R. Co., 2 Cir., 191 F.2d 86, 88, certiorari denied New York, N.HC & H.R. Co. v. Korte, 342 U.S. 868, 72 S. Ct. 108, 96 L. Ed. 652; Schilling v. Delaware & H.R. Corp., 2 Cir., 114 F.2d 69, 71. The sustained efforts of the Supreme Court majority to preserve the integrity of the jury system, over vigorous dissent that the time taken with these cases was not well spent, show that this verdict is not to be upset. See, e.g., Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 524, 559, 77 S. Ct. 443, 1 L. Ed. 2d 493; Gibson v. Thompson, 355 U.S. 18, 78 S. Ct. 2, 2 L. Ed. 2d 1.
Defendant's second contention is that the FBIA, 45 U.S.C. § 23, imposes liability only for mechanical or structural defects, and not for dangerous conditions caused by the temporary presence of foreign matter. But the statute itself contains no such limitation, and instead requires all locomotives and their parts and appurtenances to be "in proper condition and safe to operate * * * without unnecessary peril to life or limb." Furthermore, the Supreme Court expressly rejected such a narrow reading of § 23 in Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 487-488, 63 S. Ct. 347, 352, 87 L. Ed. 411.*fn1
In the Lilly case the plaintiff had suffered injuries in a fall from the top of a locomotive tender which had become icy in violation of a rule of the Interstate Commerce Commission. Sustaining a jury verdict for plaintiff the Supreme Court said: "The use of a tender, upon whose top an employee must go in the course of his duties, which is covered with ice seems to us to involve 'unnecessary peril to life or limb' - enough so as to permit a jury to find that the Boiler Inspection Act has been violated." 317 U.S. 481, 486, 63 S. Ct. 347, 351. So the use of an engine whose surface has been made slippery by sand and oil may similarly be found by a jury to involve "unnecessary peril to life or limb" in violation of the FBIA.
Defendant contends that the Lilly case authorizes recovery for nonstructural or nonmechanical defects only where the dangerous condition results from a violation of an ICC rule. In Lilly the Court, after rejecting the argument that § 23 did not extend to such defects, referred to certain of the early cases denying liability on which the defendant here also relies,*fn2 and stated that "[whatever] else may be said about the cases relied upon by respondent, they are sufficiently distinguishable in that they either did not involve or did not consider Rule 153 or any comparable regulation." Id., 317 U.S. at page 488, 63 S. Ct. at page 352. But the Court also stated that the jury could have found a violation of § 23 in the absence of such a rule. Id., 317 U.S. at pages 486, 489, 63 S. Ct. at pages 351, 352. The requirement of safe equipment is set by the statute, not by the rule.*fn3 While the Commission has the power to give more definite content to this standard in specific instances by rules, the failure of the Commission so to act does not relieve a carrier of its obligation to meet the statutory requirement of safe equipment as it may be reasonably interpreted by a jury.*fn4 If the Commission had enacted a rule requiring engine platforms to be kept clear of slippery substances, clearly the jury could have concluded that an engine platform made slippery by sand and oil was in an unsafe condition within the meaning of § 23. The absence of such a rule, which would only be declaratory of common sense, can make no difference to the jury's right to reach such a conclusion. It would be indeed an anomaly to require enforcement of a Congressional mandate for safe railroad equipment to depend upon the action or nonaction of an administrative agency.
We find no persuasive authority since the Lilly case to support the narrow construction of § 23 for which defendant contends. Defendant relies on Raudenbush v. Baltimore & O.R. Co., 3 Cir., 160 F.2d 363, where the Third Circuit, distinguishing Lilly as relying on a Commission rule, held that the requirement of "secure sill steps" in 45 U.S.C. § 11 referred only to mechanical and structural defects, and was not applicable where an employee fell on newly fallen snow. But the applicability of § 23, which had been ruled out of the case by the district court, was not considered on appeal. Furthermore, in a later opinion by the Third Circuit in Terek v. Conemaugh & Black Lick R. Co., 3 Cir., 231 F.2d 564, 567, where plaintiff alleged but failed to prove that he fell on a slippery foreign substance, the court accepted without dispute plaintiff's contention that "the defendant railroad would be responsible [under § 23] for injury caused by a foreign substance on the floor of its locomotive regardless of fault." In that case, as in Delevie v. Reading Co., 3 Cir., 176 F.2d 496, interrogatories were submitted to the jury inquiring whether a slippery foreign substance had made footing unsafe - a factor suggesting that trial courts in the Third Circuit consider such substances as creating liability under § 23. Defendant also relies on Camp v. Atlantic Coast Line R. Co., 251 Ala. 184, 36 So.2d 331, which refused to find liability under § 23 where there was doubt that the fall was caused by grease as alleged and where the grease may well have come from plaintiff's own shoes. Even that case, however, recognized that the Act would be violated if a locomotive were made unsafe "because of the presence of dangerous objects or foreign matter." 251 Ala. 184, 36 So.2d 331, 335.
We think the sounder view is represented by cases holding that dangerous conditions caused by foreign substances give rise to liability under § 23. In Minehart v. Southern Pac. Co., 136 Cal.App.2d 486, 288 P.2d 999, liability under § 23 was imposed on the authority of Lilly for a locomotive ladder made greasy by oil. In Zumwalt v. Gardner, 8 Cir., 160 F.2d 298, 304, the jury was permitted to find for the plaintiff if it concluded that dirt was present in the equipment controlling the brakes. In Atlantic Coast Line R. Co. v. Sweat, 5 Cir., 183 F.2d 27, § 23 was violated when a piece of waste in the water tank caused a boiler explosion. In Tisneros v. Chicago & N.W. Ry., 7 Cir., 197 F.2d 466, certiorari denied 344 U.S. 885, 73 S. Ct. 184, 97 L. Ed. 685, the trial court concluded that an icy condition of steps and grab irons could be "an unnecessary peril to life or limb" under § 23, but the court of appeals reversed on another ground without ruling 6n- this issue.
It is clear that a permanently slippery surface would constitute unsafe equipment under 45 U.S.C. § 23. Bolan v. Lehigh Valley R. Co., 2 Cir., 167 F.2d 934; Louisville & N.R. Co. v. Botts, 8 Cir., 173 F.2d 164. For the reasons stated, we do not think the statute authorizes a different result simply because the dangerous condition is created by the presence of grease and oil.
WATERMAN, Circuit Judge (concurring).
I concur in the result and join my colleagues in affirming the judgment. In the light of Lilly v. Grand Trunk Western R. Co., 1943, 317 U.S. 481, 487-488, 63 S. Ct. 347, 87 L. Ed. 411, the trial court's charge to the jury with reference to plaintiff's claim of defendant's liability to him under the Boiler Inspection Act, 45 U.S.C.A. § 23 was not erroneous. Until that decision is clarified a trial court is justified in charging the jury that the presence of any unstable foreign substance on the exterior of a locomotive, irrespective of how the substance came to be there, conclusively establishes that the railroad, as when a defective boiler explodes, has negligently violated its duty to its employees of providing them with safe places in which to work.
Like Judge FRIENDLY, I arrive at this result with great reluctance, and if I did not consider ourselves bound by the language in Lilly v. Grand Trunk Western R. Co., ...