respectfully dissenting:
The problem with plaintiff’s suit is that the Safety Appliance Act (45 U.S.C.A. § 11 (West 1986 & Supp. 1994)) does not apply to the facts in the case at bar. Section 11 says: "[I]t shall be unlawful for any railroad *** to haul, or permit to be *** used on its line, any car *** not equipped with appliances ***, to wit: All cars must be equipped with secure sill steps ***.” (45 U.S.C.A. § 11 (West Supp. 1994).) Section 11 does not say that it is unlawful for any railroad to haul or use any car not equipped with accident-proof sill steps. Lex non intendit aliquid impossibile, i.e., the law does not intend anything impossible.
There was no allegation that the steps were unsecured or even unsafe in any way. Thus, the railroad met its duty to equip the car in question with secure steps and, even, "safe” steps. It is only when a foreign substance is added does a question arise. Was it the steps, or was it the oil, or was it the heavy dew that fell that morning, according to the defendant, or was it simply that the plaintiff was 100% careless or negligent and would have fallen even if he were standing on the flat pavement, that caused the accident?
Take the example of the ubiquitous banana peeling. Is it not the banana peeling that causes a person to slip and fall, rather than the ground underneath the peeling? In the case at bar, no one argues that the steps without the oil or dew could have caused the injury. If the plaintiff had slipped on grass due to the oil on his shoe, would we blame God?
The Act itself says nothing about the steps being "safe.” It speaks only of the cars being equipped with secure sill steps. The majority points out that the word "safe” arises solely from a safety regulation drafted by the Federal Railroad Commission and that it "declinéis] to read such a limitation [an exception for the temporary presence of foreign matter] into the regulation.” (Emphasis added.) (266 Ill. App. 3d at 510; 49 C.F.R. § 231.10(i) (1991).) However, the majority is reading an addition, the words "safe from all foreign matter or safe in all ways, times, or places,” into the regulation and the statute. Surely, the drafters of the regulation did not intend, nor do they have the power, to make the regulation broader than the intent of the statute. (See Knight v. Chicago & North Western Ry. Co. (1954), 3 Ill. App. 2d 502, 123 N.E.2d 128.) Nor can anyone cite a situation where the regulation was applied to a foreign substance on the steps.
Contrary to the concurring opinion, a close reading of the Knight case shows that the appellate court ruled that the issue of whether worn wooden steps with the edges rounded off, as opposed to steel perforated steps, were a violation of the Safety Appliance Act was to be decided by a jury. Wet steps and cinders on plaintiff’s shoes were only mentioned in passing by the court as being admissions by the plaintiff. Since the court totally ignored such admissions by the plaintiff in its opinion and discussion of the law and the facts, except for briefly mentioning that the railroad said that wood and steel were equal in adherence when wet, I received the impression that the court would have dismissed the case as a matter of law, if the car had been equipped with secure, steel, perforated steps. Knight, 3 Ill. App. 2d at 507-11, 123 N.E.2d at 132-33.
The majority cites and analogizes from the holdings in Lilly v. Grand Trunk Western R.R. Co. (1943), 317 U.S. 481, 87 L. Ed. 411, 63 S. Ct. 347, and Calabritto v. New York, New Haven & Hartford R.R. Co. (2d Cir. 1961), 287 F.2d 394, which cases are concerned with an interpretation of the Boiler Inspection Act (Boiler Act) (45 U.S.C.A. § 23 (West 1986 & Supp. 1994)). These cases provide good examples of the point I am attempting to make. The Boiler Act itself, and not a regulation, requires in part:
"It shall be unlawful for any railroad to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time ***.” (45 U.S.C.A. § 23 (West 1986).)
Clearly, the "Boiler Act” by its very wording mandates inspections and that the tender must be safe and in proper condition before being used. Section 11 of the Safety Appliance Act does not mandate inspections or prohibit the use of steps when wet or slick, most likely because Congress believed that everyone using such familiar objects, such as steps, knows to be careful, especially when wet.
A person or corporation should not be held civilly liable, let alone liable for fines under section 13 of the Safety Appliance Act (45 U.S.C.A. § 13 (West 1986 & Supp. 1994)), unless he, she, or it has done something wrong or failed to perform a duty required by law. If the railroad failed to attach steps securely to the car or did not maintain such to stay secured, then clearly the railroad would have violated the law. How can we, however, stretch the plain meaning of the words "equipped with secured steps” to mean "equipped with secured steps that will repel all foreign substances”? In this case, the steps could have been inspected a million times and the accident could not have been prevented. Moreover, it would be ridiculous to require in effect that the railroads shut down every time it snowed, sleeted, or rained or a heavy dew fell, so that all car steps would be "safe,” when used.
If Congress desires to impose liability for any and all possible accidents that happen to occur on the steps, then Congress should say so. The wording of statutes, however, should be given their ordinary meaning and not be rewritten by the courts to cover situations not intended by Congress. It would be useless for me to go to Washington, if the courts are going to change the plain meaning of the statute by judicial legislation in order to avoid the contributory negligence issue present under the Federal Employer’s Liability Act.
The only case involving a slip and fall under section 11 due directly to a foreign substance on the sill step, and not a defective step as in Knight, is Raudenbush v. Baltimore & O.R. Co. (3d Cir. 1947), 160 F.2d 363. (See also Ford v. New York, N.H. & H.R. Co. (2d Cir. 1931), 54 F.2d 342 (where grease on the handhold was held not to be a violation of section 11); Tobin v. Detroit, T. & I.R. Co. (1937), 57 Ohio App. 306, 13 N.E.2d 739 (where frost on the running board on a tank car was not a violation of section 11).) In Raudenbush, there may have been snow on the sill step. The court of appeals held that it would be an impossible duty to require the railroad to keep the snow off the steps at all times. The court also alluded that section 11 referred only to defects in the mechanical and structural character of the steps. The court then held that there was no duty upon the railroad to remove the snow and thus there was no violation of section 11 of the Safety Appliance Act. I do not see where I am wrong about the law under section 11 of Safety Appliance Act, as no cases hold that the Boiler Inspection Act applies to section 11.
Can we say as a matter of law that the steps caused the accident? Surely, a directed verdict against the defendant as to liability should not have been entered. At a minimum, the jury, as in Knight, should have been permitted to decide if the defendant violated the Federal law.
Accordingly, I would remand for a new trial under the Federal Employer’s Liability Act, which provides the remedy for plaintiff intended by Congress.