
    (110 Tex. 213)
    LANCASTER & WIGHT v. ALLEN.
    (No. 3274.)
    (Supreme Court of Texas.
    Jan. 14, 1920.)
    1. Master and servant <s=mllO— Railroad COMPLYING WITH RULES OP INTERSTATE Commerce Commission under Safety Appliance Act not negligent
    Under Act Cong. Feb. 17, 1911 (U. S. Comp. St. §§ 8630-8639), as amended by Act Cong. March 4, 1915 (U. S. Comp. St. §§ 8639a-8639d), and rules and regulations of the Interstate Commerce Commission thereunder prescribing with particularity the extent of wear on the flange of a locomotive wheel which renders it defective, railroad, was not negligent where the flanges on the wheel were in accordance with such rules; the question of whether railroad exercised ordinary care to keep flanges safe for operation of locomotive not being the test of negligence in such ease.
    2. Master and servant 107(1) — Violation OP FEDERAL STATUTE AS TO EQUIPMENT RENDERS RAILROAD LIABLE.
    In the absence of a violation of some other statute, the common carrier’s liability under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-866.5) for injury or death by reason of defect in equipment depends on whether defect was due to carrier’s negligence, but where statute requires common carrier to furnish certain equipment or to furnish equipment in a certain condition, and death or injury is due to a violation thereof, the violation fixes liability for the consequent damages.
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Suit by Mrs. Clara Allen, administratrix, against Lancaster & Wight, receivers. Judgment for plaintiff afflrmed by the Court of Civil Appeals (207 ¡3. W. 9S4), and defendants bring error.
    Reversed and remanded.
    F. H. Prendergast, of Marshall, for plaintiffs in error.
    S. P. Jones, of Marshall, for defendant in error.
   GREENWOOD, J.

This suit was brought by defendant in error as the personal representative of T. O. Allen, deceased, against plaintiffs in error, as receivers of the Texas & Pacific Railway Company, to recover damages for the death of T. O. Allen from injuries suffered by him while employed by said receivers in interstate commerce.

Defendant in error alleged, and offered, evidence to establish, that T. O. Allen’s death resulted from defects due to the receivers’ negligence, in a switch point on the receivers’ track, and in a flange on a locomotive wheel, which caused the derailment of the locomotive on which T. O. Allen was discharging his duties to the receivers as fireman.

The defect in the flange of the locomotive wheel on which defendant in error relied in her pleading and proof was that It had become so worn as to cause the locomotive wheel and truck to climb the rail and derail the locomotive.

Plaintiffs in error duly answered, and introduced evidence to show that the switch point was not defective, and to show that the flange of the locomotive wheel was not worn to the extent required in order to be defective under the Safety Act of Congress and the rules prescribed thereunder by the Interstate Commerce Commission.

The charge of the trial court authorized a verdict for defendant in error on the findings: First, that the flange on the locomotive wheel had become worn, so as to render unsafe the running of the locomotive, or that the switch point had become defective, so as to cause the running of the locomotive to be unsafe ; second, that either the defective flange (if defective) or the defective switch point (if defective) caused the engine to be wrecked and T. O. Allen’s death; and, third, that the flange or switch point had been permitted to become defective by reason of the negligence of the receivers.

A verdict was returned for defendant in error, and the judgment thereon was affirmed by the Court of Civil Appeals. 207 S. W. 984.

The trial court refused a special charge requested by plaintiffs in error as follows:

“It appears in this case that Allen at the time he was killed was engaged in interstate commerce, and the rights of the plaintiffs are therefore governed by the act of Congress. It appears in the evidence that the Interstate Commerce Commission, acting by virtue of the power granted them by the act of Congress, had made certain rules governing what condition of flanges of a locomotive wheel makes it safe and what condition makes it unsafe. If you believe in this case that the flanges on the wheel were in accordance with said rules enacted by the Interstate Commerce Commission, then you cannot find that the railroad was negligent in that regard.”

Ry proper assignment complaint is made by plaintiffs in error of the decision of the Court of Civil Appeals that this special charge was correctly refused.

The charge which was refused made compliance by the receivers with the requirements of the act of Congress of March 4, 1915, the test of negligence with respect to .the flange of the locomotive wheel. The charge which was given made the test of negligence with respect to the flange the exercise of ordinary care to keep the flange safe for the operation of the locomotive.

In our opinion, the proper test was stated in the refused charge. By the act of Congress approved February 17, 1911 (36 Statutes at Large, ch. 103, p. 913, 3 U. S. Statutes Annotated, p. 522 [U. S. Comp. St. §§ 8630-8639]), it was made unlawful for any common carrier in the United States after July 1, 1911, to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler and its appurtenances were in proper condition and safe to operate, without unnecessary peril to life or limb, and such boilers were required to be able to withstand such tests, as might be prescribed in rules and regulations to- be approved or prepared by the Interstate Commerce Commission, which rules and regulations were to be obligatory. The act further provided for careful inspection of boilers and their appurtenances to secure the observance of the act by all common carriers.

By the act of Congress approved March 4, 1915 (38 Statutes at Large, c. 169, p. 1192, 3 U. S. Statutes Annotated, p. 529 [U. S. Comp. St. §§ S639a-8639d]), the act of February 17, 1911, was amended so as to apply to and include the entire locomotive and tender and all parts and appurtenances thereof.

The Interstate Commerce Commission approved rules and regulations prescribing with particularity the extent of wear on the flange of a locomotive wheel which renders it defective and which requires its discontinuance from service.

We have no doubt that the amended act of Congress must determine tire liability of the receivers for the death of Allen in so far as such liability is claimed to have arisen from a defect in the flange of the locomotive wheel. The amended.act made it obligatory on the receivers to conform to the rules and regulations of the Interstate Commerce Commission governing worn flanges on locomotive wheels. The obligation of the receivers was not to exercise ordinary care to have reasonably safe flanges on the locomotive wheels, but the receivers were under the absolute duty to at all times have and keep the flanges on locomotives propelled by steam in moving interstate or foreign traffic in the condition, as respects wear, which Congress had prescribed.

This question is ruled by the opinion in St. Louis & Iron Mountain Ry. v. Taylor, 210 U. S. 294, 28 Sup. Ct. 616, 52 L. Ed. 1061. In discussing the Safety Appliance Act, with respect to drawbars and the regulations for drawbars prescribed by the Interstate Commerce Commission, it is said in that opinion:

“The Congress, not satisfied with the common-law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that ‘no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard.’ There L no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them .or lessen their significance. The obvious purpose of the Legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it.”

What was said in Taylor’s Case is reaffirmed in C., B. & Q. Ry. v. U. S., 220 U. S. 573, 31 Sup. Ct. 612, 55 L. Ed. 582, Great Northern Ry. v. Otos, 239 U. S. 351, 36 Sup. Ct. 124, 60 L. Ed. 322, and Bridge Co. v. United States, 249 U. S. 539, 39 Sup. Ct. 355, 63 L. Ed. 757.

It is contended for defendant in error that, regardless of whether the act of March 4, 1915, regulated the worn flange, the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665) made the receivers liable for the death of T.- O. Allen from injuries suffered by him while employed by the receivers in interstate commerce, if such injuries resulted from a defect in the flange of a wheel of a locomotive of the receivers, due to their negligence, or from a defect in a switch point in the railroad track, due to their negligence, and that hence the charge which was given, instead of the charge refused, followed the Liability Act, and rightly declared the law.

It 'is true that, in the absence of a violation of some other statute, the common carrier’s liability, under the federal Employers’ Liability Act, for injury or death, by reason of defect in equipment, does depend on whether the defect was due to the carrier’s negligence. The finding of negligence on the part of the common carrier in such cases is indispensable to liability. But where a statute requires the common carrier to furnish certain equipment, or to furnish equipment in a certain condition, and the carrier violates the statute, and thereby causes death or injury to an employé, the violation of the statute fixes liability for the consequent damages. Hence, with respect to the flange of the wheel in this case, the sole question was as to whether it was in a condition prohibited by the rules of the Interstate "Commerce Commission, and therefore by the act of Congress; and inquiry was utterly futile as to whether the receivers had exercised, or had failed to exercise, any degree of care to render the flange safe.

It cannot be said that the receivers were not prejudiced by the refusal of the requested charge, in the light of evidence which would support a finding of compliance with the rules and regulations of the Interstate Commerce Commission; for the jury may have believed that ordinary care to render the flange reasonably safe required more than these rules and regulations.

We think that the Supreme Court of the United States refuted the contention that there could be any test of nfegligence save that of compliance with the law in cases involving violations of any of the provisions of a federal Safety Appliance Act, when the court, per Justice Pitney, said:'

“As was stated in Tex. & Pac. Ry. v. Rigsby, 241 U. S. 33, 39 [36 Sup. Ct. 482, 484 (60 L. Ed. 874)]: ‘A disregard of the command of the statute (Safety Appliance Act) is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied.’ If this act is violated, the question of negligence in the general sense of want of care is immaterial. 241 U. S. 43 [36 Sup. Ct. 482, 60 L. Ed. 874], and cases th^re cited. But the two statutes are in pari materia, and where the Employers’ Liability Act refers to ‘any defect or insufficiency, due to its negligence, in its cars, engines, appliances,’ etc., it clearly is the legislative intent to treat a violation of the Safety Appliance Act as ‘negligence’ — what is sometimes called negligence per se.” S. A. & A. P. Ry. Co. v. Wagner, 241 U. S. 484, 36 Sup. Ct. 630, 60 L. Ed. 1110.

The holding is repeated in Spokane & Inland R. R. v. Campbell, 241 U. S. 510, 36 Sup. Ct. 683, 60 L. Ed. 1125.

The judgments of the district court and of the Court of Civil Appeals are reversed, and the cause is remanded to the district court for a new trial. 
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