ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY
v.
SWEARINGEN.

*340 Mr. Robert Dunlap, with whom Mr. Gardiner Lathrop, Mr. J.W. Terry and Mr. A.H. Culwell were on the brief, for plaintiff in error.

*342 Mr. Perry J. Lewis, Mr. C.P. Johnson and Mr. S. Elgelking, for defendant in error submitted.

*341 MR. JUSTICE HOLMES delivered the opinion of the court.

This is a suit for personal injuries suffered by the plaintiff (defendant in error,) while acting as fireman upon and in charge of a defective engine that had been picked up by a train. He had been kept on duty for more than *343 sixteen hours, and, as we take it for present purposes, contrary to the act of March 4, 1907, c. 2939, § 2, 34 Stat. 1415, 1416, without the justifications or excuses allowed in § 3. While about to do some oiling according to directions, he fell from the running board of the pilot and his leg was cut off. There was evidence of negligence on the part of the Railroad but the defendant set up that the plaintiff was guilty of contributory negligence and assumed the risk. The only matter that we have to consider here is an instruction given to the jury touching the effect of keeping the plaintiff on duty overtime upon these matters alleged by the defence.

The delay that led to keeping the plaintiff on duty too long was caused by the breaking of a valve yoke, and a part of the charge was as follows: "If, however, you believe that said breaking of the valve yoke was no such casualty or unknown and unforeseeable cause as is provided by law, that is to say, if you find that the breaking of the valve yoke could have been guarded against or foreseen by the exercise of ordinary care, then you are instructed that the law authorizes you to infer negligence on the part of the defendant at the time of plaintiff's injury, in requiring him to be on duty more than sixteen hours. And if in the breaking of the valve yoke you find no casualty or such unknown and unforeseeable cause as aforesaid, then and in that event you will entirely disregard defendant's pleas of contributory negligence and assumed risk, as then the plaintiff can in no way be held to have been guilty of contributory negligence in going upon the pilot while the engine was moving, nor can he in any way be held to have assumed any of the risks ordinarily incident to his work or even open and apparent to him at the time he was hurt."

The last half of this instruction was excepted to in the presence of the jury, but the charge was not modified. It was the one instruction specifically directed to the matter *344 of overtime. The natural understanding of it by people untrained in the law, if not by everybody, would be that the unjustified retention of the plaintiff at his work for more than sixteen hours would make the defendant liable whether the retention contributed to the injury or not. The statute that excludes the defences of contributory negligence and assumption of risk in such a case is not the Hours of Labor Act itself but the subsequent Employers' Liability Act of April 22, 1908, c. 149, §§ 3, 4; 35 Stat. 65, 66. The latter has that operation only when the breach of the law contributes to the injury. St. Louis & Iron Mountain Ry. v. McWhirter, 229 U.S. 265, 279, 280. We do not think it possible to read the absolute language of the instruction as implicitly limited to such a case.

Judgment reversed.

MR. JUSTICE DAY and MR. JUSTICE PITNEY dissent.