on an order of summary judgment the summary judgment should be reversed in its entirety including specifically whether or not the locomotive at issue was in use so as to invoke the liberal provisions of negligence per se intended by congress when an acted the locomotive inspection act as well as the f e l a we also submit that the district court's order on summary judgment should be reversed with respect to all of the general negligence claims because there are genuine issues of material fact and there are substantial pieces of evidence which support the claim generally speaking this court's review should begin with how we can do justice to congress intent in an acting that longstanding legislation which has been mentioned already in cases here today and this court has the benefit of case law to guide the f t l a was an ac thousand nine hundred and six as a broad a humanitarian statute intended to be interpreted liberally to afford relief and remedies to reverend workers who were injured in the course of their job duties the locomotive inspection act was enacted soon thereafter and was specifically intended by congress to broaden the scope of delays a cutback and so we have to look at the text of the statute and not simply its purpose and all statutes are compromises and even though it had a remedial purpose we still have to look at the compromise congress struck in the language it chose so how can you talk a little bit about how you which hard your argument into the requirement  absolutely one hundred i would not suggest otherwise i was merely suggesting that looking at congress's intent becomes evident when you look at the plain language of the statute as well as how the united states supreme court house interpreted those statutes but starting off with the language of the statute itself it provides specifically that a railroad may use or allow to be used a locomotive on its railroad line only one of those in a proper condition and safe to operate without an unnecessary danger and that its inspectors as required so the language of the statute is directed to the actions of the rarity not specifically to the individual employed by starting from that standpoint we consider the time and use because it's not defined and perhaps congress didn't think that a term like use needed to be defined but under common parlance to for the rare road to use or to allow it to be used as a locomotive certainly would include utilizing a locomotive or rail car in connection with its interstate commerce and by that definition alone clearly the actions in this case were mr woodward was injured when he slipped on oil while he was walking on the locomotive to enter its cow and turn the locomotive off well that but it seems that seems pretty broad and much broader than any other circuit applying a multi factor test has taken  interpretation your honor in fact sometimes in understanding what a term means it is helpful to look at what it does not mean and so that's what most of the court cases have addressed is when it is not in use and so for example this court in the while in the tos narrows cases both tracking each other held that a locomotive was not in use when a mechanical or maintenance employee was injured at a maintenance facility a round house or a shop while lubricating fueling or cleaning the locomotive and in fact into this narrows it was being it was being taken to that facility but here's my question you just said that use for you no it's purpose of affecting interstate commerce is that how you put it just now i said that the use can include utilization in connection with transportation in interstate commerce why wouldn't that be in connection with transportation interstate commerce because everything you do to prepare a locomotive to head out or to be in shape for etc being used in interstate commerce has that connection to interstate commerce even if not the actual preparation or immediate preparation to be pushed on the tracks fair enough and there certainly should be limitations on what in connection means so by defining it leads to more questions and to what exactly constitutes the outer limits of in connection and so this zero said that the location and the activity are important and that's essentially what all of the other circuits well most of the other circuits have come down to focusing on in identifying when a locomotive  so fit into that framework of this court in those two previous cases and one before held that were you have a maintenance employee as opposed to mr le doux or who is a transportation employee that that is an important factor secondly the activity involved in the injury event is the nd consideration and in both lyle and tos narrows the activities were far removed from being in connection with actual transportation in the sense that it was conducting maintenance or repair work so the courts have made relatively clear that for individuals who are doing mechanical or maintenance work and a facility then the locomotive is no longer being used by the railroad and that's in contrast with the facts that we have in this case and in some other cases i can get to but here in this case this is a train that originated here in chicago and was on its way to southeast missouri with a stop in salem illinois for a crew change and to simply place out and to pick up a few rail cars but the concept of three locomotives and the rest of that train was going to continue in its commerce so even though we can quibble about what the outer extents of in use may mean in this case it's clear that this locomotive was being used by the railroad as part of a train being moved in transition as opposed to being set out somewhere on a repair track to be addressed by classification of employees in the mechanical on the back track right it was in on an active service track it within the rail yard whether it's on the back track or whether it's on the mainline has held to be not a material or at least not a determin factor by most of the courts but of address this and that would be true of all the cases where in use has been found for the purpose of locomotives and rail cars that are involved in some switching activities which clearly wouldn't be on the main track because you have a number of tracks that are put together for the purpose of classifying trains was a locomotive idling during the truth it was if according to the evidence and more importantly your honor it's not a i dispute it issue for you to consider because in the performance of his duties a transportation worker encounters the exterior platforms of a locomotive a thing essentially a two times one is at the beginning of the shift and one is at the end of the shift and congress saw fit through the secretary of transportation to enact the safety regulations that said that locomotives cannot be used and less a are kept free of oil or other slippery substances and that the flooring must be properly treated to provide secure footing and that you have to do an inspection every single day and application to transportation workers for that to be given any kind of sense and certainly the broader scope that i believe that the congress intended by enacting the locomotive inspection act to expand and that means that the locomotive engineer is entitled to rely upon the railroad in doing its job properly to make sure that the locomotive is free of oil both at the beginning of the shift when he's walking on to the locomotive and when he's walking off the locomotive at the end of the shift and the roads argument in this case is that there should be a hard line stop that if the locomotive is not being prepared to be used then and to be operated then it doesn't apply whatsoever and that would lead to an absurd result of an employee being able to rely upon the reverend at the beginning of the shift but not at the end of the so your honor if i can dove tail into some of the other court's decisions that helped to support mr woodward's position here the united states supreme court in the rigby and the brady cases talk about in use in the context of the safety appliance which all courts have acknowledged the in use analysis has application to the locomotive inspection act and in rigby a switchman who does switching work a transportation employee was injured while the sending a defective rail car after that car was being moved to a repair shop so it wasn't being readied for transportation in the immediate sense it would have been somewhere down the road but even in that case united states supreme court said that the statute is so broad as to include that type of use and that type of location for being in use and so help in other words use according to the supreme court  much broader than simply operation of a locomotive and brady the employee was injured when he was inspecting rail cars that have been delivered from st louis to east st louis and then if they were going to be found defective then they're going to be sent back not accepted and otherwise they would continue on part of their journey and again the united supreme court said in that case that car was considered to be in use when the employee was injured when use coming down from the rail car and a gravel iron broke if you look beyond this court's cases and we look at the other cases the mcgrath case which was decided by the st circuit and i appreciate that's not binding on this clerk but it certainly is instructive and has been cited by both sides then the court there found that the locomotive was in use when the engineer slipped and fell while he was entering the cab of the locomotive to review the daily inspection car and the locomotive was idling on a rail yard track the court considered those duties incidental to train operation duties which again judge baird indicates or i believe supports congress intent that this be a broader application than the narrow application that has been cited and been urged by defendant in this case so you agree that if the definition is narrower say to being in use or immediately ready for use that mr lodore with those i don't i don't agree with that but i because i was much harder case well for him certainly and i'm not sure if i understand your question completely are you saying he loses and the purpose of the act is that locomotives should be safe to operate in the service in which the same are put that the same may be employed in the active service of such carrier and when the courts have dealt with in use they're looking at whether or not this is an locomotive that's going to be operated safely this court and ward versus sue focused on that language when they're talking about safe operation  the news case that was that nine feel a case but nevertheless they were using that language so the focus has been on whether or not it can be safely operate and when you look at this court's decision in lisle and you look at the facts there the person who was actually a hostler helper was servicing the train for future use it was getting it ready to be use it was no imminent departure in fact i think the facts are in the door they didn't know when it found that was not in use because where it was at the time and what was going on in answer to your honest question yes was on the back tracked there was testimony every new pacific employee who said that there wasn't that backtrack had been used at active service which is what the plaintiff argues but then he goes on to say within the are that most of the service of that track has been moving trains within that yard or located in that yard so it was not something that was on the mainline at all in terms of whether or not it was immediately operational there's two facts to focus on one the train had not been assembled this importantly move we're talking about whether it's safe to operate you have a situation here where this locomotive was being tagged running then infect two locomotives were being tagged running dead by the plate that there was only action only in the train so we're talking about language which the courts have used active service immediately ready to operate safe to operate you're talking about a train a locomotive that's going to be pulled along to another location for inspection and maintenance it was being tagged were in the dead and if i could quote from while it seems to me that is the  use that's what happened here that's not you might not know the answer to this question but it's striking to me that the cases that we have anyway if i guess anything is requirement are all quite on how come the sinews requirement doesn't get let me get it very much because people use feel two and that's the last date that i seen the other circuits have had weighed in on this but he was one of those cases are all and i think it's with all due respect to some of their the service i think it's gotten out of control for example the bryan case which counsel cites it was a fist circuit case in that case the locomotive got into a collision it was d rail it was lying on its side they were trying to read rail it was the term i think they used in the case and during that re railing process an employee was in and they said that that locomotive was in use even though it had been gutted by fire and was inoperable th circuit said it's in use so that's kind of the extreme that i think we've got to i believe the lyall and the to snare us cases got it right is that you have to look at whether or not it is an operation which seems to me there be no dispute if it's pulling a train it's an operation but immediately ready to operate and that's what the district court decided that in this case because and needed to be further activity done switching of cars with the in that train together and then hooked up to the consist that under while then it's now so it was not ready to go  therefore they found it was not in use let me ask you a question so this has now in use or immediately ready for operation hasn't been i take that it quite that way that i've seen in the other circuits although i think that the multi factor tests are consistent with am i right about that that no other circuit has articulated it precisely that way i think you know a lot of what they seem to be realigning upon is to tout the circumstance tess but some of the think the th in particular the angle case and then later in the dean case they were looking at where it was in the process of being ready but they were focusing on who was injured and where the locomotive was time those are the two factors they were looking at and i think that gets to like a they do have the you know to tell you the circumstance test but don't you think that those tests are all getting to those points they use or immediately ready for not focusing on necessarily the fact that this was an engineer because the act doesn't distinguish between what their status is injured employee the act and say anything about that with that the act also doesn't say where was the where it was actually on the mainline but had been blue fly and so what does that mean blue flag it means that it was going to be under repair in that case i think a gauge gas gauge either to be repaired or fixed and so they're trying to keep other small spot of oil of an undue known origin in fact when they went back and they looked at where he fell they couldn't find any components in the cab as to where this or could possibly have come so under the be some notice in the pacific and in this case that was certainly no actual notice there's no argument about that the issue that i few phrases is constructive no but there's absolutely no where he fell said it was a slippery area that he slipped on something later on there's been testimony by u p a employee yes it was all there but there was never any connection stating that union pacific knew or would have known had they done inspections and in fact this very similar to this court's decision and holbrook where they found in that case for the rebel employee had slipped on a ladder that apparently had some here is it would have been pure speculation to have said that that came from the train or it came from his who no one knew its own inspection may not have turned it up in the absence of any evidence finally there's another issue which a raised it deals with whether or not he tread was worn and whether or not that could have caused this fall but the plane could testify themselves when i slipped on the oil the tread didn't keep me from falling that was his testimony so the oil wasn't there are not responsible for the there's nothing that says there's no indication of the record a he would slip but for the oil he said it didn't it didn't prevent my fall so again i had the district court was correct in finding that claim once you determined that the oil could have been found by union pacific is out is what and so we respectfully ask this court to affirm the district court we believe that number one under the l a this was not something that was in use i think it would be judge perry you asked the question why are these cases sold while the real answer i believe is most likely because the united states supreme court made so clear in its early decisions in the one thousand nine hundred and thirty s that even a written a locomotive that was taken to a repair facility and the employee had secured it and was getting off and fell when he got off that that would constitute adequate and used to invoke the protections of the strict liability statutes and because railroads in light of that they weren't pressing the issue to challenge it and say that there should be a exemption from liability that's why you're not seeing the cases and it's also true that the f e l a expands the only ally expands to the f a and so what we see even in the th circuit case is not a narrow focus on whether or not the locomotive was not ration instead this court focused on the type of the employee the location of the work and the activity that was being done if it was a simple matter of just whether or not the locomotive was an operation whether was on which clearly it was not when it was getting serviced at the repair shop just like your car gets its oil change that the car is not on then the court could have said that but it didn't say that this court went through the analysis of looking at the location at the repair shop looking at the activity repair and maintenance and that should be dispositive for this court and he shouldn't have to get tangled up into what all these other courts look at in different factual situations and briefly ask to the f e l a negligence claims there's no dispute that the supreme court in a said that this is to be interpreted broadly and that a jury determination counsel was suggesting that the presence of oil would somehow impair our claim as to the inadequate non slip tribe serves so whether or not the non slip treads surface caused or contributed to cause him to fall no matter how slight the contribution was that's a case for the jury asked to notice regarding the existence of the oil we don't need to prove that actual notice is deemed to be established if the reverend itself created or allowed the condition to be created and the irony here that should not escape this court's attention is that the rare it is trying to claim the benefit of not having notice of oil when it clearly and admittedly violated the safety inspection of the locomotive inspection act that requires it to inspect  locomotive every calendar day it put this locomotive on the train it was powered on it was idling and it didn't do its inspection on the day before it gave it to mr latour and now want to claim it wants to seek a benefit from that by saying it didn't have notice and that's what distinguishes this case from the holder case and why it should be remanded on the f e l a negligence claims as well for a jury to decide that i see that my time is at the end and if there are any further questions i would