On Motion for Rehearing. The appellee contends that, because appellant, induced the trial court to submit their special issue No. 18, inquiring if the ash pan in question was so equipped that it could be closed by a man standing on the ground without any danger of being injured by any movement of the engine while so attempting to close the pan, and because the jury answered such issue in the negative, appellants are now estopped, on the ground of invited error, from insisting that the evidence does not show a violation of the Ash Pan Law. The Ash Pan Law prohibits a railroad from using a locomotive in interstate traffic which is not equipped with an ash pan which can be operated without the necessity of an employee going under the locomotive to operate it. It does not require the use of a locomotive which is equipped with an ash pan which can be operated without any danger to an employee. It does not undertake to say what character of device shall be provided by the carrier to meet the requirements of the law. It would be difficult to conceive of an appliance by which the ash pan could be operated from the ground by an employee absolutely without danger if the engine should move, if the employee persisted in continuing the work while it was moving. As stated in the original opinion, we think the appellee has failed to show that the equipment of the ash pan in question was a violation of the Ash Pan Law. A showing merely that its operation from some other position than under the engine was accompanied with possible danger does not bring it within the terms of the Ash Pan Law, and certainly would not render the carrier liable without a finding that the equipment upon the engine in question constituted negligence. If the ash pan is not equipped so that it can be operated without the employee going under the engine, the law has been violated, and no proof of negligence is required, but, if the contrivance is such that it may be operated without such necessity, but not without danger, then negligence is not presumed, but must be proved. In answering the first two issues the jury found that the engine was not equipped with an ash pan which could be operated without the necessity of plaintiff going under, or partially under, the engine, and that it was necessary for him, in the discharge of his duties, to take a position on the ground under, or partly under, the engine, to close the pan. These two issues were objected to by the appellants, but the objections have not been brought forward in the assignments or propositions. An employee might necessarily be partially under the engine and still not be in such place of danger as would show a violation of the Ash Pan Law, in equipping the engine, which required him to be partially under it, in which *Page 294 event it would also be necessary to show negligence. To illustrate: Suppose the contrivance for operating the ash pan was so arranged that the employee would have to stand between the rails, in front of or behind the engine, then probably in case of a movement of the engine in his direction he would be in danger while operating it, but because he was not under the engine neither the spirit nor letter of the law would be violated, and proof of negligence would be required to fix the carrier's liability. It is true that by requesting special issue No. 18 the appellants have committed themselves to the theory that in operating the engine in question while standing on the ground the plaintiff was in danger, but this by no means confesses that the equipment did not comply with the law or that it constituted such negligence as would entitle plaintiff to recover.
We have again reviewed the appellee's testimony and are unable to find any definite statement to the effect that he tried to operate the pan from the cab after the engine moved out on the turntable track. He says:
"I don't know what was the matter. I don't know whether I was running along and got a cinder or not in it. At the time I was trying to close it I don't know whether the engine was standing still or moving; I don't know whether the ash pan caught on the high pile of cinders or not. If it caught on the high pile of cinders while the engine was standing still, I don't think I could have closed it. I don't know if it would catch on cinders whether that would prevent it from closing; I suppose it would."
The only reasonable inference from this and other testimony is that, while he was trying to operate it from the cab, the cinders, which had been emptied from the pan, were piled so high on the ground under the pan that it would not close. He does not say how long it was after he quit trying to operate the pan from the cab until he started to alight and fell. There is no question but that he fell into the pit, and he expressly declares that he did not know whether the engine was standing still or moving while he was trying to close it from the cab. We find no warrant whatever in the testimony sustaining appellee's contention in the motion that at the time he was trying to close it "the engine was standing in the middle of the turntable about 11 feet above any ground on which cinders could have been piled." There is not a syllable of evidence to the effect that he endeavored to operate the ash pan from the cab after the engine had been moved onto the turntable. From the testimony of appellee and several other witnesses it appears that, when engines came in from a run in either direction from Dalhart, the engineer and fireman would run them on a track toward the roundhouse, stopping about 100 feet before they reached the turntable upon which such engines were switched to the various tracks leading from it into the several stalls of the roundhouse, and this custom was followed upon the occasion in question. There the regular engineer and fireman would abandon the engine. Then it was taken in charge by the hostler and his helpers. What was done by them afterward is described as follows: The appellee testified:
"When we first went to that engine it was on the cinder pit track 30 or 40 yards from the roundhouse. There was a turntable near there. It was headed into the turntable, and about 30 or 40 feet, I believe, from the turntable. There was not at that time a cinder pit along the track there, but the cinders were disposed of in this way: While we were shaking the grates, the hostler would move the engine back and forth so that they would not pile in one place, and then later on they were cleaned from the track. * * * My torch only burned a few minutes after I got out there on the engine. I went into the engine to open the ash pan and shake the ashes out of the grates. There is a lever on each side of the fire box door you shake the grates with. Those grates are under the engine, under the fire box. While we were shaking those the engine was being moved backward and forward so that the cinders would not fall in one place. It was to be kept moving while we were shaking out cinders and ashes. That was not the first thing I did after I got in the cab. The first thing I did was to open the ash pan so they could not fall in the pan. The ash pan is under the grates. I don't know whether it is directly under them or not; I think it is a little forward in front of the grates. I opened that. By opening that I mean there is a slide door where you open it. It pulls back so that the clinkers and ashes will fall on the ground. That door is at the bottom of the ash pan. I opened it by the lever that extends up in the cab on the fireman's side that I pushed down to open the pan. * * * By pushing that lever down you pull the door open. We were to leave that open while we were shaking the grates, and after we got through shaking the grates we had to close the ash pan before going into the roundhouse or onto the turntable. That was to be closed before we went onto the turntable. You asked me if I did that that night. I tried to. I made, I suppose, 10 or 15 efforts to pull it up, but I did not succeed. I pulled on it as hard as I could with my strength and jerked it. * * * The engine was still when I started to get out of it. Before the engine went to the pit the fire was supposed to be knocked and the ash pan closed and the turntable lined up. Lynas lined up the turntable that night. After the engine was ready to go on or ready for the turntable he had to go to the turntable and turn it around and line up the tracks — the one that the engine was on and the track that runs into the turntable. * * * I did not know the engine had been moved onto the pit. You ask me if I remember or had I noticed how long the engine had been still before I started down out of it. It had not been still but a few minutes, I don't think; I don't know. Lynas and I would be shaking the fire out after we would have our slides open, and *Page 295 Hanna would run the engine back and forth on that cinder track. We would do that so we would not get it all in one pile and clog it up. After we would do that, then we would put the engine on the turntable to go in whatever stall in the roundhouse we wanted it to go into. When we got up into the engine, the lights were not burning in there at that time; I don't think they were. We all three went out of the office together. I think Hanna was the first man in the engine. The ash pan opened all right. Lifting this iron bar is the first thing I did. Then I started shaking the grates. It was about 20 or 25 minutes, according to my best judgment, after my torch went out until I started to get down and fell. * * * Q. You didn't get down there [on the ground] that night and didn't try to lift up? A. No. sir. Q. You won't swear before the jury that, supposing you got down there that night and you took hold of this [horizontal] rod this way, with your back towards the south and your face toward the big drivewheels, who won't swear that you could not have lifted it up that night, will you? A. No sir; I won't swear that I could not. I could state my reasons why. * * * I don't remember that I have testified before that Mr. Hanna turned the lights off. My testimony now, as I remember, him saying as we came out of the office, `Better turn those lights off.' I don't remember who turned them off."
Hanna, the hostler who was moving the engine, testified in part:
"[Appellee] did not, to my recollection, on that night, say anything about the ash pan would not close or open, or anything. He did not make any remarks about the ash pan. * * * I said that I rolled that engine onto the turntable, as slow as I could move it — about a mile and a half or two miles an hour. When it went onto that turntable, it would make a jolt. It would jolt as well as make some noise; it would be worse than if going over a joint; it would be worse than a low joint."
The witness Lynas testified:
"With reference to the killing of the engine when we were shaking the grates to get the ashes and cinders out of the ash pan and the engine was moving slowly up and down on the track, you ask me about how close we were to the turntable. We would not drop the ashes any closer than 10 or 12 feet from the turntable, and the track was probably 300 feet long where we ran up and down there."
There is nothing in all of this testimony intimating that the ash pan, which appellee said opened without any trouble, failed to close because of any defects in it; on the contrary, he expressed the opinion, and all the testimony relating to the matter tends to indicate, that it was on account of cinders piling up on the track that it failed to close. Appellee does not charge the appellants with negligence in failing to have an ash pit, nor in failing to run the engine in such manner that cinders would not be caught in the ash pan. He charges that the ash pan was defective, and relies upon negligence per se. The burden was on him to establish its defective condition, and from his own testimony it is clear that he thinks the presence of cinders prevented him from closing it.
In his supplemental motion for rehearing appellee says:
"If it is really the holding of this court that the Ash Pan Act was not shown violated because the position required on the ground for closing the pan did not require the entire body of the operator to be wholly under the engine, or if this court really believes the recent case of Phillips v. Pennsylvania R. Co. (C.C.A.) 283 F. 381, decisive of the question of proximate cause against appellee, the court should make effective decision by reversing and rendering the case."
As stated in the original opinion, the appellee did not show a violation of the Ash Pan Act by proving that in closing the pan while upon the ground his body would be only partially under the running board of the engine or the extension of the floor of the cab. We also believe that the Phillips Case is decisive of the question of proximate cause. In that case it was shown that Phillips, a fireman, had observed that the automatic bell ringer was not working; that he asked the engineer for a monkey-wrench, and, taking this and a piece of wire, went forward to repair the bell ringer. He climbed over the top of the cab, thence along the top of the boiler to the bell ringer, situated on the front end of the locomotive, and in doing so passed over the steam dome of the boiler. While he was repairing the bell ringer the engineer descended from the cab and proceeded to oil the locomotive. After repairing the bell ringer Phillips started back to the cab. Just as he was stepping over the steam dome the safety valve popped, causing him to lose his balance and fall to the ground. When the engineer was about to leave the cab he turned off the blower, and the steam gauge was then registering 180 pounds. The valve in the steam dome was regulated to pop off at a pressure of 205 pounds. Some time after the accident the valve was tested, and it did not pop off until a pressure of 215 or 220 pounds was reached. The trial court directed a verdict for the railway company. The Circuit Court of Appeals held that the defective condition of the bell ringer was negligence per se, but manifestly in Phillips' journey the defective bell ringer was merely the occasion, and not the proximate cause of the accident. The Supreme Court of the United States refused a writ of certiorari. The appellee insists that the Phillips Case is not authority upon the issue of proximate cause in the instant case because in that case there was distinct succession in time of the two causes of defective ringer and the popping off of steam, the defect in the ringer having lost its power and efficiency before the matter *Page 296 of popping steam came into action, and that in the instant case both the greasy water on the apron of the cab and the defective ash pan were acting together and concurrently. As heretofore stated, there has been no defect shown in the ash pan, but, if it be admitted that it was defective, and appellee had alighted from the cab in safety, and had remedied the defect, and fell because of the greasy apron, while climbing back into the cab, the cases would be identical.
Believing that the Phillips Case applies in principle, and that appellee failed to show that the ash pan was constructed in violation of the Ash Pan Act, we adopt his suggestion and reform the judgment accordingly. It is therefore ordered that the judgment be reversed, and it is here rendered for the appellants.
Reversed and rendered.