On Rehearing.
Before BIGGS, JONES, GOODRICH, and McLAUGHLIN, Circuit Judges, and GANEY, District Judge.
JONES, Circuit 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 law1 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.2 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 3 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 *131of 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,4 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.
Federal Employers’ Liability Act of April 22, 1908, c. 149, Sec. 1, 35 Stat. 65, as amended by the Act of August 11, 1939, c. 685, Sec. 1, 53 Stat. 1404, 45 U.S.C.A. § 51.
See Mastrandrea v. Pennsylvania R. Co., 3 Cir., 132 F.2d 318, 319.
Promulgated pursuant to authority contained in Sec. 3 of the Safety Appliance Act of April 14, 1910, c. 160, 36 Stat. 298, 45 U.S.C.A. § 12.
According to the testimony, the clearance was given variously at one-sixtoenth of an inch or from one-sixteenth of an inch to not exceeding three-sixteenths of an inch. All of this testimony was based upon the witnesses’ estimates and not on actual measurements.