specially concurring:
I concur in Justice Welch’s opinion. I write separately to address the dissent filed by Justice Lewis.
The dissent opines that the word "safe” in 49 C.F.R. § 231.10(i) (1991) is a creature of nothing more than a "safety regulation” and that the regulatory body does not "have the power” to make the regulation broader than the wording and intent of the statute. He eloquently quotes from the Latin and laments that the "impossible” is being asked. To all this I must say that Washington, D.C., is lovely in the spring, and if elected to the United States House of Representatives or the United States Senate, he could introduce and possibly have passed legislation that would change the law to conform to his sensibilities. Until that occurs however, he is wrong on the law.
As to his complaint that conformity to the regulation is impossible, I urge him to read Payne v. Colvin (7th Cir. 1921), 276 F. 15, 17, which held: "If the statute is harsh and is difficult to comply with, relief must come from the lawmaking, not the judicial, branch of the government” (referring to the Safety Appliance Act and the railroad’s claim that compliance was impossible).
Addressing the claim that the regulation expands the requirements of the Act, the dissent is simply wrong. Section 12 of the Safety Appliance Act (45 U.S.C.S. § 12 (Law. Co-op 1981 & Supp. 1994)) specifically provides the authority for promulgating regulations of the type at issue. Regulations passed pursuant to this statutory authority carry the force of law and receive the same treatment as if written in the statute. Atchison, Topeka & Santa Fe Ry. Co. v. Scarlett (1937), 300 U.S. 471, 81 L. Ed. 748, 57 S. Ct. 541; United States v. Missouri-Kansas-Texas R.R. Co. (10th Cir. 1959), 273 F.2d 474; Williams v. New York Central R.R. Co. (1949), 402 Ill. 494, 84 N.E.2d 399.
Even in Knight v. Chicago & North Western Ry. Co. (1954), 3 Ill. App. 2d 502, 123 N.E.2d 128, cited by the dissent, the word "secure” in the statute was construed to encompass "safe.” As to the claim that no case can be cited where the regulation was applied to a foreign substance on steps, the dissent should read Knight again. In that case it was undisputed the step was wet and the plaintiff admitted having cinders on the soles of his boots. Knight, 3 Ill. App. 2d at 506-07, 123 N.E.2d at 131.
Violation of the Safety Appliance Act is a breach of an absolute duty imposed by statute, rather than a claim based on negligence, and liability cannot be avoided by a showing of care. (Colorado Milling & Elevator Co. v. Terminal R.R. Association (8th Cir. 1965), 350 F.2d 273; Williams, 402 Ill. at 501-02, 84 N.E.2d at 403.) The statute is mandatory and includes not only initial equipping but also maintenance. Anderson v. Chesapeake & Ohio Ry. Co. (1933), 352 Ill. 561, 564, 186 N.E. 185, 186.
The dissent focuses on the use of the word "safe” in the Boiler Inspection Act (45 U.S.C.S. § 23 (Law. Co-op 1981 & Supp. 1994)) as distinguished from the use of the word "secure” in section 11 of the Safety Appliance Act. The dissent is troubled because the word "safe” only appears in a regulation. What difference does that make? The United States Supreme Court, the Federal courts of appeal, and our own State supreme court have held that these regulations carry the force of law and are to be treated like they were integral parts of the statute.
Even after the United States Supreme Court decided Lilly, railroads continued to argue that the word "safe” in the Boiler Inspection Act referred only to mechanical defects that rendered the equipment unsafe; and railroads cited early cases that held foreign substances on steps did not constitute unsafe conditions as contemplated by that Act. These claims were decisively rejected:
"In determining whether the jury could properly find that the presence of oil on the step of the locomotive constituted a violation of [section 23 of the Boiler Inspection Act], the construction and meaning of the Supreme Court’s decision in Lilly v. Grand Trunk Western R. Co., 1943, 317 U.S. 481, 63 S. Ct. 347, 87 L. Ed. 411, is crucial. Prior to that decision, the cases of Ford v. New York, N.H. & H.R. Co., 2nd Cir. 1931, 54 F.2d 342, and Reeves v. Chicago, St.P., M. & O. Ry. Co., Minn. 1920, 147 Minn. 114, 179 N.W. 689, were clearly in favor of the defendant’s position. Those cases were considered by the Supreme Court in Lilly, supra, but the defendant urges that, instead of disapproving the holdings as no longer the law, the Supreme Court distinguished them solely on the basis that they did not involve a violation of an applicable regulation of the Interstate Commerce Commission. The Court’s language, in our opinion, shows that it not only distinguished the Ford and Reeves cases, but that it also disapproved their holdings.
'From various cases denying recovery under the Act, respondent attempts to extract a general rule that the Act covers only defects in construction or mechanical operation and affords no protection against the presence of dangerous objects or foreign matter. But there is no warrant in the language of the Act for construing it so narrowly, or for denying the Commission power to remedy shortcomings, other than purely mechanical defects, which may make operation unsafe. The Act without limitation speaks of equipment 'in proper condition and safe to operate * * * without unnecessary peril to life or limb.’ Conditions other than mechanical imperfections can plainly render equipment unsafe to operate without unnecessary peril to life or limb. Whatever else may be said about the cases relied upon by respondent, they are sufficiently distinguishable in that they either did not involve or did not consider Rule 153 or any comparable regulation.’ ” St. Louis Southwestern Ry. Co. v. Williams (5th Cir. 1968), 397 F.2d 147, 149-50, quoting Lilly, 317 U.S. at 487-88, 87 L. Ed. at 416, 63 S. Ct. at 352.
Section 23 of the Boiler Inspection Act makes two distinct acts unlawful: first, using any covered equipment that is not "safe to operate”; second, using any covered equipment that has not been inspected.
The Safety Appliance Act does not require inspections, but 49 C.F.R. § 231.10(i) (1991) requires the covered equipment to be "safe.” "Safe” under the Boiler Inspection Act and the Safety Appliance Act (and accompanying regulations) should be given the same meaning.
Therefore, I concur in Justice Welch’s opinion.