(dissenting) :
I agree with Judge Smith’s carefully considered opinion except for his conclusion that the jury was entitled under the Boiler Inspection Act, 45 U.S.C. § 23, to find Penn Central liable on the ground that the accident was caused in whole or in part by a thin coating of ice on parts of the steps and handholds of the locomotive, which had accumulated as the result of a light rain and sleet that occurred at a temperature of 30° as the crew was engaged in the performance of its duties. The majority’s holding on this issue is of crucial significance for the reason that while other defects and violations were also alleged to have contributed to the accident, the evidence indicates rather clearly that the principal, if not sole, cause may well have been the slippery conditions attributable to the coating of ice.
In my view the Boiler Inspection Act, as its title, text and legislative history indicates, was designed to protect against defective equipment or dangerous conditions directly connected with the operation of the locomotive itself and not against conditions attributable solely to the transitory vagaries of Mother Nature. Accordingly I would reverse and remand the case for a new trial.
As Judge Friendly pointed out in his concurring opinion in Calabritto v. New York, New Haven and Hartford R. Co., 287 F.2d 394, 397 (2d Cir. 1961):
“The language of the Boiler Inspection Act, 36 Stat. 913, § 2 (1911), 45 U.S.C.A. § 23, does not suggest to me a Congressional purpose to impose on railroads an absolute duty to keep the surfaces of locomotives and tenders as free from foreign matter at all times, as an operating room before surgery. If the Act does this I see no way of limiting the requirement to such substances as oil and grease; it must extend also to substances as unavoidable in railroad operation as snow and ice. Such a construction means that rail*895roads face an inevitable conflict between the duty thus imposed, carrying the sanction of a $250 penalty for ‘each and every such violation,’ 45 U.S.C.A. § 34, as well as of liability to employees, and their duty to render reasonable service to passengers and shippers; if the New Haven chose to regard the former as paramount, there would, I fear, be many occasions during the New England winter when we would be bereft of the presence of our colleagues from Connecticut and Vermont. Neither does anything in the legislative history of the Act afford the slightest basis for such a construction; indeed, it points rather in the opposite direction.1 If I were free to exercise my own judgment, I should therefore wholly agree with the interpretation given by this Court in Ford v. New York, New Haven & Hartford R. Co., 2 Cir., 1931, 54 F.2d 342, where we affirmed the dismissal of a complaint based on the theory that the mere presence of a foreign substance violated the Safety Appliance and Boiler Inspection Acts.
The majority here finds itself bound by the Supreme Court’s decision in Lilly v. Grand Trunk Western R. Co., 317 U. S. 481, 487-488, 63 S.Ct. 347, 87 L.Ed. 411 (1943), to uphold the district court’s instruction leading to the jury’s verdict, even though the result does violence to Congress’ expressed purposes in enacting the Boiler Inspection Act. However, I believe that since this case is clearly distinguishable in legally significant respects from Lilly and Calabritto, a reversal here would not only be consistent with those cases but would be in accord with the purpose of the Act.
In Lilly, the problem ease, the Supreme Court found that the Act extended to the formation of ice on a six-foot square area on top of the locomotive tender, located between “the water manhole and the fuel space.” Although the jury found no leak in the collar of the water manhole, it is clear that this specific area was considered to be uniquely prone to the collection of water from the operation of the locomotive itself. The Interstate Commerce Commission had adopted a rule relating to “Fuel Water Tanks” (Rule 153), which obligated the railroad to keep this small part of the top of the tender clean and to provide means “to carry off waste water.” With respect to this rule the Court said: “From the phrasing of Rule 153 we think it aimed at requiring the top of the tender to be kept free of foreign matter which would render footing insecure, for example, coal, dust, debris, grease, waste water, and ice”, 317 U.S. 486-487, 63 S.Ct. 351 (emphasis added). Referring to earlier decisions of various Courts of Appeals holding thát the presence of foreign substances did not violate the Act, the Supreme Court went on to say “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 *896not consider Rule 153 or any comparable regulation,” 317 U.S. at 488, 63 S.Ct. at 352. See Raudenbush v. Baltimore & O. R. Co., 160 F.2d 363 (3d Cir. 1947).
Thus Lilly, in my view, did not liberalize the interpretation of the Boiler Inspection Act to the extent claimed by appellee here. Although the presence of foreign matter causing an accident may violate the Act, it must, as I read Lilly, be attributable to or connected with the operation of the locomotive itself. See Turner v. Clinchfield R.R. Co., 489 S.W. 2d 257 (Ct. of App., Tenn), cert. denied, 411 U.S. 973, 93 S.Ct. 2168, 36 L.Ed.2d 696 (1973). Thus in Calabritto this Court upheld a finding of liability based on the presence of oil and sand on the platform of one of the switching engines, which obviously was produced by the operation of the equipment. In the present case, in contrast, the formation of a thin coating of ice on the steps and grabirons could by no stretch of the imagination be attributed to the operation of the equipment. Furthermore, the present case “did not involve Rule 153 or any comparable regulation,” 317 U.S. at 488, 63 S.Ct. at 352.
To extend liability under the Boiler Inspection Act to the mere transitory presence of ice which forms because of weather conditions developing during the course of operation places railroads, many of which are already bankrupt, in an impossible position. Such a holding means that unless the railroad, when such an unforeseen condition develops, immediately stops operations, it becomes vulnerable not only to damage suits, which some may dismiss as one of the risks of the business, but, more important, to suits by the United States for heavy penalties based upon violation of the Act. Such a result is unfair and unrealistic. It wholly exceeds Congress’ declared purpose in enacting the Act and the Supreme Court’s interpretation of it. I would draw the line at the outer limits which I have specified.
. The initial debate on the floor of the House indicated that the legislators were primarily concerned with boiler explosions. Representative Mann, chairman of the House Committee on Interstate and Foreign Commerce, which reported the bill, said ‘It is the belief of all people concerned, both the railroads and the employees, that the passage of this bill will materially result in the lessening of boiler explosions.’ 46 Cong.Rec. 2071 (1911). Representative Robinson spoke of accidents caused by ‘defective boilers,’ id. at 2072, and Representative Peters of explosions, steam pressure, and the need to inspect boilers from the inside, id. at 2074. The broadening of the Act in 1915 was recommended by the Senate Committee on Interstate Commerce in a one-page report, S.Rep., 63rd Cong., 3d Sess., No. 1068, which said only:
“ ‘This measure provides for the inspection of the entire locomotive. Experience has shown that this is necessary and desirable for the proper safeguarding of the lives of those who travel and of those engaged in the oi>eration of locomotives.’
“The House Report on the 1924 amendment, 68tli Cong., 1st Sess., No. 490, reprinted a letter from the Interstate Commerce Commission which spoke in passing of accidents ‘resulting from the failure of some part of appliance of the locomotive or tender.’ P. 3. The Senate Report, No. 740, simply reprinted the House report with approval.”