K. K. HALL, Circuit Judge:
This is an appeal by the Chesapeake and Ohio Railway Company (C & O) from a decision of the district court that, as a matter of law, the accident in question was within the purview of the Boiler Inspection Act (the Act), 45 U.S.C. § 23. The trial court found that under the facts and circumstances in the case, the company's diesel engine was "in use" within the meaning of
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