ship of such injuries, and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are in the main helpless in that regard. Such a policy would be intelligible, and, to say the least, not so unreasonable as to require us to doubt that it was intended, and to seek some unnatural interpretation of common words. We see no error in this part of the case."

In Chicago, Burlington & Quincy Railway Co. v. United States, 220 U. S. 559, 31 S. Ct. 612, 55 L. Ed. 582, the Supreme Court had the meaning of the Safety Appliance Acts again before it. It quoted at length from the Taylor Case, supra. Mr. Justice Harlan, writing for the court, called attention to the fact that in that case the court had decided that the acts "imposed an absolute duty" on the carriers, and that that duty could not be evaded or excused by proof that the carrier had used ordinary care or reasonable diligence. He declared that the court was unwilling to regard the question "as open to further discussion here. If the court was wrong in the Taylor Case, the way is open for such an amendment of the statute as Congress may, in its discretion, deem proper." As the court has ever since adhered to its construction of the acts, and Congress has never seen fit to modify the construction the court gave them, we must conclude that no error was committed and that Congress intended the duty imposed to be absolute.

In Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 43, 36 S. Ct. 482, 60 L. Ed. 874, the court, referring to the Safety Appliance Act, again declared: "The question whether the defective condition of the ladder was due to defendant's negligence is immaterial, since the statute imposes an absolute and unqualified duty to maintain the appliance in secure condition."

In the recent case of Baltimore & Ohio Railroad Co. v. Groeger, 266 U. S. 521, 45 S. Ct. 169, 69 L. Ed. 419, the Supreme Court had occasion to pass upon section 2 of the Boiler Inspection Act. That was an action brought by an administratrix of the estate of her deceased husband to recover damages for his death. At the time of his death he was a locomotive engineer, operating a steam locomotive propelling an interstate train. He, too, was killed by the explosion of the boiler. In that case, as in this, the administratrix obtained a verdict and judgment

against the defendant, and it was affirmed by the Circuit Court of Appeals for the Sixth Circuit, 288 F. 321. The case was taken on certiorari to the Supreme Court, and reversed for certain erroneous instructions to the jury to which it is not necessary for us to refer at this time. But it is important and material that the Supreme Court, construing section 2 of the Boiler Inspection Act, declared: "By the lastmentioned section defendant was bound absolutely to furnish what before, under the common law, it was its duty to exercise ordinary care to provide." And the court went on to speak of the defendant's "duty to have and keep its boilers safe for use as required by the act." It declared: "No notice to the defendant, actual or constructive, of the defects or unsafe condition of the boiler, was necessary to plaintiff's case."

An "absolute" duty is one which is not subject to any limitation or condition. It is positive and not dependent. It is unqualified by any conditions or considerations whatsoever. If the Boiler Inspection Act imposed on the defendant an absolute duty to have the boiler and appurtenances thereof safe to operate, and substituted that rule for the common-law rule, which holds the employer to ordinary care to provide his employees a reasonably safe place in which, and reasonably safe appliances and machinery with which to work, it in effect makes the employer an insurer of the safety of the place in which the employee works and of the appliances with which he works. While the duty imposed upon the carrier is absolute, it is not enough that the carrier had failed to show that the appliances which it had provided were safe. [5] It must appear in addition that the failure of the carrier to comply with the act was the proximate cause of the accident which resulted in the injury. Davis v. Wolfe, 263 U. S. 239, 243, 44 S. Ct. 64, 68 L. Ed. 284. The liability arises only when the failure to obey the acts is the proximate cause of the injury. Louisville Railroad v. Layton, 243 U. S. 617, 621, 37 S. Ct. 456, 61 L. Ed. 931; Lang v. New York Central Railroad Co., 255 U. S. 455, 41 S. Ct. 381, 65 L. Ed. 729. In the instant case it is perfectly evident that the failure of defendant to furnish a safe locomotive was the proximate cause of the death of Beltz.

The construction here given to the Boiler Inspection Act accords with that placed by the Supreme Court upon the Safety Appliance Act. The construction to be given to

that act came before the Circuit Court of Appeals for the Sixth Circuit in 1908 in St. Louis & San Francisco Railroad Co. v. Delk, 158 F. 931, 86 C. C. A. 95, 14 Ann. Cas. 233. That court held that, while the Safety Appliance Act imposed on the carrier the absolute duty in the first instance of equipping its cars with couplers of the character described in the act, and thereafter to keep them so equipped, the carrier was only required to use reasonable care after the cars had been so equipped to keep the automatic couplers in repair. In the course of his opinion, which was concurred in by Judge Lurton (afterwards an Associate Justice of the Supreme Court), Judge Severens said: "But it is now proposed to add to the obligation of the carrier by requiring that he shall be bound to see that the substituted

coupling shall at all times and places be in good order, a burden well nigh to impossible. The coupling apparatus on railroad cars is subject at all times while they are being operated, to almost constant wrench and strain and liability to breakage. Much of the time the cars are connected up in trains running on time schedules, and under orders of train dispatchers which must be observed, or fatal and disastrous consequences ensue. Moreover, accidents to the couplings or unknown defects appear at places more or less remote from repair shops. It is reasonable and just to require that the carrier should exercise a high degree of care to keep the couplings in proper condition. But it seems unjust and unreasonable to say that having fulfilled its utmost duty in this regard, it should be held responsible for conditions which may occur without its fault. We do not say that Congress has not the power to impose such an obligation as it is contended this statute imposes; but what we mean to say is that if a statute seems to impose obligations so extraordinary and difficult to perform the courts would be bound to see whether the language employed is not susceptible of a more reasonable construction."

The case went on certiorari to the Supreme Court, where it was reversed. 220 U. S. 580, 31 S. Ct. 617, 55 L. Ed. 590. In reversing it the court said:

been rejected by this court in Chicago, Burlington & Quincy Railway Co. v. United States [220 U. S. just decided, 559, 31 S. Ct. 612, 55 L. Ed. 582], and on the authority of that case we hold that the Circuit Court of Appeals erred in the particular mentioned."

As this court is satisfied that the duty imposed, under section 2 of the Boiler Inspection Act, on a carrier in interstate commerce is absolute, and it is admitted that the plaintiff's decedent, at the time his injuries were inflicted, was engaged in such commerce, and there is no doubt that the failure of the carrier to furnish a safe locomotive as required by the act was the proximate cause of his injuries, I agree that the judgment should be affirmed.

HOUGH, Circuit Judge, dissents, deeming the ruling made inconsistent with Baltimore & Ohio R. R. Co. v. Groeger, 266 U. S. 521, 45 S. Ct. 169, 69 L. Ed. 419.

cert sinicd

775 1270 Us LHT 70-LED 7 46 verpl 205.

LEHIGH VALLEY R. CO. v. 'HUBEN.
(Circuit Court of Appeals, Second Circuit.
November 2, 1925.)
No. 44.

1. Master and servant

276(1)-Evidence held to show baggage master on train was engaged in interstate commerce.

state were nearly always carried on train on which baggage master was working at time of his death, and lack of affirmative showing to the contrary, held to show as matter of law that decedent was engaged in interstate commerce. 2. Master and servant 267 (1) -Evidence as

Evidence that mails for points without the

to mail carried on train held admissible on question whether baggage master was engaged in interstate commerce.

Testimony that mail for points without the state was nearly always dispatched on particular train held admissible on question whether baggage master on that train was engaged in interstate commerce at time of injury, though witnesses could not state positively that such class of mail was placed on train on particular day of injury.

Hough, Circuit Judge, dissenting.

In Error to the District Court of the

New York.

Action by Anna Huben, as administratrix of the goods, chattels, and credits of Michael Huben, deceased, against the Lehigh Valley Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Alexander & Green, of New York City (Clifton P. Williamson, and H. S. Ogden, both of New York City, of counsel), for plaintiff in error.

Humphrey J. Lynch, of New York City (Sol Gelb, of White Plains, N. Y., of counsel), for defendant in error.

at the time of his death actually engaged in interstate traffic.

ROGERS, Circuit Judge. This action was brought by plaintiff, as the administratrix of the estate of her deceased husband, to recover damages for his death, which it is alleged occurred while he was employed by the defendant and in interstate commerce. The suit is based upon the federal Employers' Liability Act (Comp. St. §§ 8657-8665), the Safety Appliance Act and the amendments thereto (Comp. St. § 8605 et seq.), and reliance is had upon the federal Boiler Inspection Act (Comp. St. § 8630 et seq.). These acts were fully considered by us in Lehigh Valley Railroad Co. v. Beltz, 10 F. (2d) 74, decided by this court this day. That case and this were argued together. In that case we held that the Boiler Inspection Act, like the Safety Appliance Act, imposed an absolute duty upon a common carrier engaged in interstate commerce to use only locomotives which are in all respects safe, and so far as that question arises in the present suit it is governed by our decision in the Beltz Case.

But we are confronted in this case with a question which did not arise in that case, and which must be disposed of in a separate opinion. Michael Huben, the administratrix's decedent, was employed at the time of his death by the Lehigh Valley Railroad as a baggage master, and at the time of the accident was in the performance of his duties in a baggage car of a passenger train of the railroad company standing at the station at Mt. Carmel, in the state of Pennsylvania. His train was about to depart, but as the conductor was starting to give the signal for its departure a collision occurred with the runaway engine, from which Beltz and the engineer and the fireman had been compelled to jump because of the escape of steam, hot water, and fire, as stated in the Beltz Case.

After these men jumped from the engine it continued down grade, and ran into the passenger train standing at the station, with the result that Huben received injuries which resulted in his death. There is no doubt as to the liability of defendant, if the man was

check, of between $70 and $80. This he always turned over to his wife, who made the purchases for the family and saved the balance. His health and habits were excellent. At the time of his death he had a daughter between 11 and 12 years of age, and 3 months after his death a son was born. The wife had no independent income, and neither did Huben.

At the end of the plaintiff's case, counsel for defendant moved to dismiss on the ground that she had not established the cause of action. The motion was predicated on the claim that there was no proof that at the time of his death Huben was employed in interstate commerce; and it was also predicated on the claim that no negligence on the part of the defendant was proven, and that without proof of negligence there was no liability imposed on defendant, either under the federal Employers' Liability Act, or under the Safety Appliance Act, or under the Boiler Inspection Act. But in the Beltz Case this court has decided that the acts of Congress impose an absolute duty upon carriers engaged in interstate commerce to maintain their locomotive engines, when in active service, in a safe condition, and that the liability of the carrier in the discharge of that duty does not depend upon its negligence.

[1] The only question, therefore, which it is necessary now to consider, is whether the plaintiff has established by sufficient evidence that Huben at the time of his death was engaged in interstate commerce. The District Judge held as a matter of law that the defendant's liability was absolute, and that the plaintiff was entitled to a verdict. The jury returned a verdict for plaintiff in the amount of $22,500, which was divided as follows: To the daughter Florence, 16 years old, $2,500; to the son Gerald, 4 years old, $5,000; to the wife, plaintiff herein, and 41 years old, $15,000.

Some attempt was made to show that at the time of the collision the passenger train, in the baggage car of which Huben was in charge, had on board passengers for points outside the state of Pennsylvania. But the

sir.

"Q. Some day there was not? A. No,

"Q. You do not know this day whether there was or not? You do not remember this day especially? A. No, sir.

"Q. You only know that it was the common thing that there should be a New York pouch on the 7:05 train? A. Yes, sir.

"Q. And if I have your testimony correctly, that is all you do know; is that right? A. Yes, sir."

Counsel then moved to strike out the witness' testimony on the subject of custom and practice at that time, as immaterial, irrelevant, and incompetent, and hearsay, as far as the day in question is concerned. The motion was denied and an exception allowed.

We think the testimony of these witnesses was admissible, and that no error was committed in denying the motions to strike out. Courts admit the probative value of a person's habit or custom as showing the doing on a specific occasion of an act which is the subject of the habit or custom. 1 Wigmore on Evidence, § 92. So evidence is admissible as to the usual and fixed course of business between two persons, to indicate the probable tenor of a particular transaction. See Howard v. Sheward, L. R. 2 C. P. 148; Plumb v. Curtis, 66 Conn. 154, 33 A. 998. The mere writing of a letter, addressing it and stamping it and depositing it in the post office, is sufficient to put upon the party addressed the burden of showing he never received it. Rosenthal v. Walker, 111 U. S. 185, 4 S. Ct. 382, 28 L. Ed. 395; Young v. Clapp, 147 Ill. 176, 32 N. E. 187, 35 N. E. 372; McDowell v. Insurance Co., 164 Mass. 444, 41 N. E. 665; State v. Howell, 61 N. J. Law, 142, 38 A. 748. And we think that, while the admissibility of testimony given in this case as to the custom of this train to carry interstate mail is somewhat different from the principle involved in the cases mentioned, it is nevertheless somewhat analogous, and that no error was committed in denying the motion to strike out.

It was proven that the train which regularly left Mt. Carmel at 7:05 a. m., and upon which the decedent was employed as baggage master, was accustomed to carry in the baggage car mail for points outside the state of Pennsylvania. But it is not shown by direct proof whether or not on the morning this accident happened such mail was actually on board the car. But it appears to us that the 10 F. (2d)-6

"Did the proof sufficiently tend to show that Morford was engaged in interstate commerce? At the moment, the switch engine was not hauling any cars, and so the true character of the employment can be determined only by a broader view. The evidence showed that the railway company, in and about these yards, was continuously and indiscriminately hauling intrastate and interstate freight, and that, in this part of the work, no distinction whatever was made between the two classes. Describing the work of this train crew, the yardmaster's clerk said that it handled both intrastate and interstate shipments, that it handled all classes and character of freight and all kinds of cars during its working hours, and that it did the work of transferring and putting into other trains everything that came in for transfer, making no difference or distinction. When it was sought to get the cards constituting the record which would show exactly what cars had been handled that night, counsel for the railroad said: 'We admit that, when these cards come in, they will show freight of every character and description; intrastate and interstate both kinds.' In answer to the statement by plaintiff's counsel that he wished 'to show further that this character of interstate freight came in there and was handled by this train (crew) that night,' counsel for the railroad company admitted that at some time during that night this particular decedent had handled both intrastate and interstate freight, and that other freight of both kinds was coming in and going out of those yards, and that all the tracks down there were used for the handling of both. Upon this stipulation of fact, the trial proceeded."

Judge Denison then reviewed the cases, and concluded that "cases like the present are fairly within the line of validity. They hardly go beyond fixing the burden of proof and declaring that, where the facts show the case may well have been within the statute, the initial burden is satisfied, and it is for the defendant to show the contrary."