(concurring).
I concur in the result and join my colleagues in affirming the judgment. In the light of Lilly v. Grand Trunk Western R. Co., 1943, 317 U.S. 481, 487-488, 63 S.Ct. 347, 87 L.Ed. 411, the trial court’s charge to the jury with reference to plaintiff’s claim of defendant’s liability to him under the Boiler Inspection Act, 45 U.S.C.A. § 23 was not erroneous. Until that decision is clarified a trial court is justified in charging the jury that the presence of any unstable foreign substance on the exterior of a locomotive, irrespective of how the substance came to be there, conclusively establishes that the railroad, as when a defective boiler explodes, has negligently violated its duty to its employees of providing them with safe places in which to work.
Like Judge FRIENDLY, I arrive at this result with great reluctance, and if I did not consider ourselves bound by the language in Lilly v. Grand Trunk Western R. Co., supra, I would reverse and remand for a new trial.