Before BIGGS, JONES, GOODRICH, and McLAUGHLIN, Circuit Judges, and GANEY, District Judge.
Four of the five members of the court in banc which heard the reargument of this appeal remain unable to see wherein the trial record presents reversible error.
The plaintiff's misfortune, so far as recovering damages adversarily for the death of her husband is concerned, lies in the fact that the responsibility being hers under the law*fn1 to prove that her husband's death resulted from the defendant's negligence, a jury, after a fair and impartial trial, returned a verdict for the defendant.
At a former time we had occasion to observe the irremediable loss that can arise because of the fact that there is no federal compensation law covering employees of railroads engaged in interstate commerce.*fn2 It is, indeed, unfortunate that that should be so, particularly, when, as here, a long-time employee has lost his life in the discharge of the duties of his employment, yet his dependents are unable to obtain recompense for their loss of support. But that is a situation which requires legislative and not judicial correction. Inasmuch as the plaintiff's right to recovery under the Federal Employers' Liability Act depended upon her ability to prove to the satisfaction of a jury that the employer was negligent and that his negligence caused her husband's death, the court below had naught to do, in the absence of reversible trial error, but to enter judgment on the jury's verdict; and, by the same token, we on our own part are equally without right to disturb the judgment.
In the instant case, no material or relevant evidence was ruled out at trial nor was the reception of any improper evidence made the subject of valid exception. On the basis of the record before us, there can hardly be any difference of opinion as to that. The case was submitted to the jury in a charge to which plaintiff's counsel took no exception in any presently material connection, either as to fact or law. That the trial court did not instruct the jury concerning the respective dimensions prescribed by the Interstate Commerce Regulations*fn3 for the square fit of a brake shaft and its accompanying ratchet wheel, as a means for determining whether the equipment was defective, was never alluded to anywhere by plaintiff's counsel until the petition for rehearing in this court; and, it is by no means clear that, even now, the petition for rehearing assigns that as an appropriate basis for reversible error.
But, in any event, the dimensions prescribed for the brake shaft and its attendant ratchet wheel are minimum requirements according to the express specifications of the Regulations. Thereby, a clearance of one-sixteenth of an inch between the shaft and the ratchet at the place of their intended square fit mathematically appears. But, no maximum measurements for either the brake shaft or the ratchet wheel at the point of their assembly are prescribed. And, consequently, no definite maximum of clearance between the two appears thusly. Nor is any maximum of clearance elsewhere prescribed. In that situation we are unable to see how a court could say, as a matter of law, that the slightest clearance in excess of one-sixteenth of an inch rendered the defendant guilty of negligence per se, regardless of the efficiency of the brake for its purpose.
The pertinent Regulations were admitted in evidence and the testimony as to the clearance between the brake shaft and ratchet wheel, here involved,*fn4 was before the jury which had to answer the question which the court fairly submitted, viz., whether the equipment was efficient. No question of equivalents was injected. The defendant's responsibility under the Act was to furnish efficient brake equipment, and it supplied brake equipment, not something else. Whether the equipment which the defendant did furnish complied with the required minimum measurements prescribed by the Regulations (there was no evidence that it did not) and whether the equipment was efficient were questions of fact which the jury had to consider in arriving at its verdict.
We confirm our former decision.
BIGGS, Circuit Judge (dissenting).
The plaintiff is the widow and executrix of Ralph E. Barry. Barry, a brakeman employed by the defendant railroad at its yard at Rutherford, Pennsylvania, was injured while "humping" a gondola car down the railroad yard and died as a result of his injuries. The provisions of Sections 2 and 3 of the Safety Appliance Act, 45 U.S.C.A. Sections 11 and 12, are applicable to the appliances on the car on which Barry was riding at the time of the accident. There is evidence (to be dealt with hereinafter) from which the jury might have found that the car had a hand brake not in accordance with the regulations promulgated by the Interstate Commerce Commission by its order of March 13, 1911 and that the accident to Barry resulted because of this. The jury rendered a verdict for the defendant. After judgment, the plaintiff appealed.
Section 2 of the Safety Appliance Act provides that a car of the type with which we are here concerned must be equipped with "efficient hand brakes." Section 3 provides that the dimensions and manner of application of the appliances provided for in Section 2 "as designated by the Interstate Commerce Commission shall remain as the standards of equipment to be used on all cars" subject to the provisions of the Act. Two of the Commission's regulations are pertinent. One provides that "The brakeshaft shall be not less than one and one-fourth (1 1/4) inches in diameter * * * "; the other, that the "Brake-ratchet wheel shall be secured to brake-shaft by a key or square fit; said square fit shall be not less than one and five-sixteenths (1 5/16) inches square."
If a hand brake is not in accordance with the dimensional standards promulgated by the Commission pursuant to Section 3 of the Act, such a brake may not be deemed to be "efficient" within the purview of Section 2. If the accident to Barry was caused by the brake (the brake not being in accord with the regulations), the Act created a liability against the defendant in Barry's favor. Texas & P.R. Co. v. Rigby, 241 U.S. 34, 40, 36 S. Ct. 482, 60 L. Ed. 874.*fn1 A violation of the Act or of ...