This action is under the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143). The trial justice set aside the verdict in favor of the defendant for the reason that the questions of contributory negligence and assumption of the risk should have been withheld from the jury. Plaintiff was a locomotive engineer. While operating an engine and standing on the floor of the cab his foot slipped and he was thrown to the floor receiving injuries for which he brings this action. He claims there was a depression in the floor about two feet in circumference and one and one-half inches deep. The existence of this depression is the ground of the alleged negligence of the defendant. Plaintiff had used the cab several times before the day of the accident and had not reported this depression. He testified it was his duty to report defects in the engine which came under his observation. He says he had not noticed the depression in the cab floor until the day of the accident and shortly before its occurrence. The testimony of other witnesses tended to show there was no depression. If the jury found it existed they were also at liberty to find that the plaintiff knew of its existence before the day of the accident. If he had such knowledge the jury were permitted under the charge of the court to find that he assumed the risk. The question of his contributory negligence was also submitted to the jury.
Sections 3 and 4 of the Federal Employers’ Liability Act (35 U. S. Stat. at Large, 66) render unavailable the defenses of contributory negligence and assumption of risk “ in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.” The statute which prompted the court to apply the above-quoted provisions of sections 3 and *6934 to this case and to set aside the verdict is the so-called Federal Boiler Inspection Act of 1911 (36 TJ. S. Stat. at Large, 913, chap. 103) which made it unlawful for a common carrier to use a locomotive engine in interstate or foreign traffic “ unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate,” and required inspection of the boilers from time to time. The accident happened January 12, 1915, and the case, therefore, is unaffected by the amendment to the last-mentioned statute which became effective later in that year (38 U. S. Stat. at Large, 1192, chap. 169). We think the act of 1911 has no application to this case. It relates not to the locomotive but to “ the boiler of said locomotive.” Clearly not every portion of the locomotive is within the statute. A cab is no part of the boiler and to hold that the floor of the cab is appurtenant to the boiler is not only to stretch the meaning of that word beyond its proper significance as applied to the boiler of a locomotive but also to inject into the statute a meaning not intended. We think Congress did not have in mind a cab as appurtenant to a boiler of a locomotive. The intention was to guard against accidents peculiar to boilers. The jury were properly instructed and their verdict in favor of the defendant should stand.
The order should be reversed and the motion denied, with costs.
All concur, except Kiley, J., dissenting with a memorandum.