(concurring).
The question is, did the railway equip its frieght cars with a brake complying with the Interstate Commerce Commission’s designated standards of Section 12 of the Safety Appliance Act, which brake, as permanently installed, complied with these standards but to which standards the railway added a defective lever bar to be applied to. the brake wheel to make the brake efficient in the grades of its freight yard?
It is apparent that these standards as much may be violated by adding dangerous factors to the Commission’s requirements as in omitting one or more of them.
Here, at the moment of leverage the lever bar became a part of the brake equipment. Because of the bar’s weakness as the brake’s lever, it broke and caused or contributed to cause the injury to the brakeman. Hence the railway’s liability comes within the provision of 45 U.S.C. 53, 45 U.S.C.A. § 53, reading
“Sec. 53. Contributory negligence; diminution of damages. In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to' the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence 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. Apr. 22, 1908, ch. 149, § 3, 35 Stat. 66.”
The district court’s instruction with respect to this provision is
“If you find from a preponderance of the evidence that the hand brake on the tank car in question would not operate efficiently with the use of a brake club, and if you find further from a preponderance of the evidence that the brake club in question was a necessary part of the hand brake on the tank car, then and in that event only, you may apply the following instructions which I will give you.
“Where plaintiff’s contributory negligence and defendant’s violation of a provision of the Safety Appliance Act are concurring proximate causes, the Federal Employers’ Liability Act requires plaintiff’s contributory negligence, if any, be disregarded.”
I think the instruction a proper application of the provision of section 53 to the above facts.
If there were doubt as to the propriety of construing section 12 as subject to violation by the addition of the weak lever to the brake, as distinguished from omitting an item of the Commission’s requirements, it is controlled by the rule of liberal interpretation established in a series of Supreme *739Court cases. This liberal view of the purpose of the Act has been so extended as to include the protection of travelers on a highway crossing, though that purpose, as stated in its title, is confined to the promotion of the safety only of “employees and travelers upon railroads.” 27 Stat. 531. Fairport R. Co. v. Meredith, 292 U.S. 589, 594, 54 S.Ct. 826, 78 L.Ed. 1446. The same liberal construction is given in Davis v. Wolfe, 263 U.S. 239, 243, 44 S.Ct. 64, 68 L.Ed. 284, where, though the statute’s purpose is stated to be for “greater security to men in coupling and uncoupling cars,” 45 U.S.C.A. § 4, a conductor, not engaged in coupling but injured by the structural failure of grab iron to be used in coupling but used by him in signaling to the engineer, recovered under the absolute obligation of the Safety Act. Similarly in Swinson v. Chicago & St. Paul Ry., 294 U.S. 529, 531, 55 S.Ct. 517, 79 L.Ed. 1041, 96 A.L.R. 1136. Cf. Lilly v. Grand Trunk R. Co., 317 U.S. 481, 486, 63 S.Ct. 347, 87 L.Ed. 411.
The railway cites A. T. & S. Fe Ry. v. Scarlett, 300 U.S. 471, 57 S.Ct. 541, 81 L. Ed. 748. Contrary to its contention, that case sustains the above construction of section 12. There a projecting end of a brace rod strengthening the car’s structure was close to a freight car’s ladder and it was claimed that its proximity violated some safety provision. Both the ladder and the brace rod complied with the Commission’s separate standards for each. Neither was a part of the other. The Court, 300 U.S. at pages 474, 475, 57 S.Ct. pages 543, 81 L.Ed. 748, stated the rule as follows:
“We do not see how it reasonably can be said that the brace rod constitutes a part of the ladder. In itself, it was a contrivance separate and distinct from the ladder, designed and used for a purpose entirely apart from the use of that appliance. The right of recovery, if any, must ■ therefore rest upon the effect of the near proximity of the ladder to the rod, neither being in itself defective. The law to be applied to that situation is the common-law rule of negligence, and not the inflexible rule of the Safety Appliance Act; and the questions to be answered are whether the two appliances were maintained in such relation to one another as to constitute negligence on the part of the company and, if so, whether Scarlett assumed the risk. * * * ”
It is clear that if the brace rod end were installed as a part of the ladder, the dangerous addition would have violated section 12.
The railway claims that it made a proper inspection of its hickory brake bars and contends, in effect, that its weakness is a latent defect. Its method of inspection is to test one of a group of rods. That method failed to disclose that the broken rod was smaller. The evidence warrants the jury to infer there had not been a sufficient inspection.